                              No.    91-347
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1932


SHIRLEY A. HERBST,
            Plaintiff and Appellant,
     -vs-

BESSIE MILLER,
            Defendant and Respondent.



APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Larry W. Moran, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Peter M. Kirwan, Kirwan   &   Barrett, Bozeman, Montana.
            For Respondent:
                 Gene I. Brown, Landoe, Brown, Planalp       &   BraaRsma,
                 Bozeman, Montana.


                              Submitted on briefs:      November 8, 1991

Filed:
Justice R. C. McDonough delivered the Opinion of the Court.

      This is an appeal from the District Court of the Eighteenth
Judicial District, Gallatin County. The plaintiff, Shirley Herbst,
initiated a negligence action after sustaining injuries from a fall
down the stairway of a building owned by the defendant, Bessie
Miller.     A jury found f o r defendant and judgment was entered.     We
reverse and remand.
      The sole issue for review is whether the District Court erred
in refusing to instruct the jury that Bessie Miller was 'negligent
per   se'    for    allegedly   violating   building   and    maintenance
requirements mandated by the Town of Belgrade.
      Bessie Miller     (Miller) owns a building in Belgrade that
includes a single rental apartment in the basement.          The remainder
of the building is occupied by a business owned and operated by
Miller.     The foundation, including the basement apartment, was
built and the building moved onto the foundation in late 1977 or
early 1978.        The only access to the basement apartment is a
concrete stairwell on the outside of the building.           There was no
handrail along the stairway prior to the plaintiff's accident.
      Shirley Herbst     (Herbst) was visiting the tenant in the
basement apartment in December, 1988, when she slipped, fell down
the stairs and was injured. Herbst initiated this action, alleging
Miller was negligent on several grounds.        A jury trial was held.

Among Herbst's allegations, she maintained that the absence of a
handrail was in violation of the building and maintenance ordinance
of the Town of Belgrade, was 'negligence per se', and that the jury
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should be so instructed.   Herbst's proposed instruction provided:
     If you find that the Defendant violated any of the
     following provisions of the State Building Code, then the
     Defendant is negligent. You should then determine whether
     that negligence was a cause of the Plaintiff's injury.
The court declined to instruct the jury that breach of the building
code is negligence as a matter of law because the court was
concerned it would, in essence, be directing the verdict by
diverting the jury from addressing the issue of causation.       Any
breach of the building code was determined by the court to be
evidence of negligence and no more.    The jury found no negligence
by special verdict, and judgment was entered in favor of Miller.
Herbst appeals.
     It is undisputed at the time of the accident there was no
handrail along the basement stairway.       Miller argues that the
applicable building code did not require there to be a handrail
when Herbst fell down the stairs.     Resolution of this controversy
requires our determination of the applicable building code.
     Prior to the 1977/1978 construction of the basement apartment,
the Department of Commerce, pursuant to 3 50- 60- 203, MCA, adopted
the Uniform Building Code (UBC), which, when adopted, constituted
the State Building Code. Section 50- 60- 205,      MCA, as amended
effective April 4, 1977, provided:
     If a municipality or county does not adopt a building
     code as provided in 50- 60- 301, the state building code
     applies within the municipal or county jurisdictional
     area and the state will enforce the code in these areas.
At the time the basement apartment was constructed, the Town of
Belgrade had not adopted a building code, and the State Building

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Code applied.      Chapter 3 3 , 53305 ( j ) , of the 1976 edition of the
UBC, as adopted by        the State, requires that       stairways have
handrails. The basement apartment as constructed was in violation
of the then applicable building code because no handrail was
installed.
     Section 50-60-301, MCA, provides that
     The local legislative body of a municipality or county
     may adopt a building code by ordinance to apply to the
     municipal or county jurisdictional area.
On January 8, 1979, the Town of Belgrade pursuant to 5 50-60-301,
MCA, adopted by reference the 1976 edition of the UBC.
     In 1981, the State Legislature amended 5           50-60-102, MCA,
modifying the State's application of the UBC.         Section 50-60-102,
MCA, as amended in part provides:
     (1) The state building codes do not apply to: (a)
     residential buildings containing less than five dwelling
     units.  ...
Miller argues that the Belgrade ordinance adopting the UBC and
requiring handrails cannot be retroactively applied to her 1977
construction of the basement apartment. Furthermore, Miller argues
that the accident occurred after the 1981 amendment and buildings
such as Miller's are no longer required by the State to have
handrails because it is a residential building with a single
dwelling unit.      Herbst, Miller contends, must show that the code
was not only in effect at the time of construction, but also that
it remained in effect at the time of the accident.
     As   previously     stated, Miller    was   in   violation   of   the
applicable code (the State Code) at the time of construction.

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Furthermore, the State's application of the UBC, in regards to
residential dwellings like Miller's, was modified by the 1981
amendment to 5 50-60-301, MCA.    In   1988, the State Building Code

provisions regarding the      installation of handrails were         not
applicable to Miller's building.        However, we must take into
account that municipalities have been authorized to regulate by
their own building codes.
     Here, the Town of Belgrade did adopt their own code, the UBC.
However, Belgrade has not modified the application of the UBC as
did the State.   The Town of Belgrade continues to apply the UBC to
single unit buildings such as Miller's.       The 1988 edition of the
UBC, Chapter 33, (now) §3306 (j), continues to require handrails on
stairways such as the one leading to Miller's basement apartment.
Miller's building was required to have handrails installed at the
time of construction (via the State Code) and continues to be
required to have handrails (via the Town of Belgrade's ordinance
adopting the UBC).      Miller violated both the building code in
effect at construction and the building code in effect at the time
of Herbst's accident.
     The remaining question is whether Miller's violation of the
building code is negligence per se or whether the District Court
correctly characterized the violation as evidence of negligence.
We have held that violation of an administrative rule adopted under
5 50-60-203, MCA, as in the instant case, is not negligence per se

but instead is evidence of negligence.             Cash v. Otis Elevator
Company   (1984), 210 Mont.    319,   684   P.2d    1041.   In Otis, we

                                  5
recognized that       §   50-60-203, MCA, mandates the Department of

Commerce to adopt rules but that the legislature did not act
further to incorporate by reference the rules adopted by the
agency. In contrast, we held that violation of a national standard
adopted by specific statutory reference is negligence as a matter
of law. Martel v. Montana Power Company (1988), 2 3 1 Mont.      96,     752

P . 2 d 140.   In the instant case, the legislature has not adopted the
UBC by reference. Therefore, violation of the State Building Code
is violation of an administrative rule and is only evidence of
negligence and not negligence per se.
      However, we have determined that the applicable building code
at the time of the accident was the UBC as adopted by the Town of
Belgrade.      The Town of Belgrade adopted a resolution whereby the
UBC is incorporated by reference.          The ordinance adopted by the
Town of Belgrade unambiguously states that it is unlawful to           'I.   .
.   use, occupy or maintain any building or structure in the Town
limits, or its jurisdiction       . . .   contrary to or in violation of
any of the provisions of this Code." In Martel, we determined that
standards implemented f o r public safety are not only applicable for
initial design and construction but can also include elements of
maintenance.      Martel, at 103.
      We conclude, the ordinance, by its wording, adopted by the
Town of Belgrade applies to the maintenance of all buildings in the
Town of Belgrade's jurisdiction.          Miller's failure to install a
handrail leading to the basement apartment is a failure to maintain
her building in adherence with the ordinance and is therefore a

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violation of the ordinance.     It is long settled that violation of
a city ordinance constitutes negligence per se.      Marsh v. Ayers
(1927), 8 0 Mont. 401, 260   P. 702.
     The District Court erred by not instructing the jury that
violation of the Town of Belgrade’s municipal building code was
negligence per se.   Herbst is entitled to such an instruction and
therefore the District Court is reversed and this case is remanded
for further proceedings consistent with this opinion.



We Concur:        -7




       Chief Justice




        Wt’ices
        LUrSt’ices




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