Miller v. Warren

182 W. Va. 560, 390 S.E.2d 207 (1990)



Failure to comply with a fire code or similar regulation constitutes prima facie negligence, if an injury proximately flows from the non-compliance and the injury is of the sort the regulation was intended to prevent. On the other hand, the converse, that compliance with a regulation is per se the exercise of due care, is not the law. Compliance with a regulation does not constitute due care per se. Compliance with the appropriate regulations is competent evidence of due care, but not conclusive evidence of due care. If the defendants knew or should have known of some risk that would be prevented by reasonable measures not required by the regulation, they were negligent if they did not take such measures. It is settled law that a statute or regulation merely sets a floor of due care. Circumstances may require greater care, if a defendant knows or should know of other risks not contemplated by the regulation.


The adults and child brought a negligence action against the hotel for injuries from a fire that the hotel won by jury verdict. The adults argued that the trial court committed reversible error in its jury instructions as to the hotel's standard of care and as to imputing the adults' contributory negligence to the child, who was only two-years old, or to each other. The case was appealed to the Supreme Court of Appeals of West Virginia.


Did the trial court commit reversible error in its jury instructions?




On review the court held that reversible error was committed on all points. The fact that the hotel complied with safety regulations was not dispositive proof that it was not negligent in some other way not subject to the safety regulations and the jury should not have been so instructed. The court also held that by law, a two-year old child was conclusively presumed incapable of negligence; it was simply too young to understand or to exercise due care. Consequently, because the child could not be contributory negligent and the adults' contributory negligence could not be imputed to the child or to each other, it was reversible error for the trial court to so instruct the jury.

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