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Russell v. Accurate Abatement
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  1997 ME 98
Docket:   CUM-96-333
Argued   April 10, 1997
Decided   May 6, 1997

Panel: WATHEN, C.J., ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.


DEBORAH RUSSELL v. ACCURATE ABATEMENT, INC.

RUDMAN, J.

	[¶1]  Deborah Russell appeals from the judgment entered in the Superior
Court (Cumberland County, Saufley, J.) following a jury verdict in her favor.
Russell contends that the trial court erred by refusing to instruct the jury that
a violation on the part of Accurate Abatement, Inc. (Accurate) of an applicable
building code may be considered by the jury as evidence of Accurate's
negligence.  We agree and vacate the judgment.
	[¶2]  In August 1991, Deborah Russell was a senior field technician for
Balsam Environmental Consultants when she was injured in a work-place
accident at Southern Maine Vocational Technical College.  On the day of her
accident, Russell was monitoring asbestos removal being performed by
Accurate, an asbestos removal contractor.  The accident occurred during a pre-
abatement containment inspection when Russell, looking up at the ceiling,
took a step backwards and fell through a hole in the floor.  Accurate had
covered the 5 x 5 foot hole with a sheet of plastic in preparation for the
asbestos removal.  The hole was not otherwise guarded in any manner.
	[¶3]  In a pre-trial motion, Russell argued that because the Building
Officials and Code Administrators (BOCA) building code had been adopted by
the city of South Portland, it had the force of law and the jury should be
instructed that a violation of the BOCA code could be considered as evidence of
negligence.  The trial court "accepted for purposes of the state of the law that
the City of South Portland has in fact adopted the BOCA code." The court,
however, ruled "the BOCA code does not apply to the actions of this defendant
relative to the plaintiff here" and declined to give a jury instruction regarding
the effect of a violation of the BOCA code.  Russell preserved her objection for
appeal.  A unanimous jury verdict determined that both Russell and Accurate
were negligent and reduced Russell's total damage award from $36,055.28 to
$7,495.28.  Russell appealed from the judgment entered on the jury verdict.
	[¶4]  A party is entitled to a jury instruction if:  (1) the requested
instruction states the law correctly, (2) it is supported by the facts in the case,
(3) it is not misleading or confusing, (4) it is not already sufficiently covered in
the charge, and (5) refusal to give the instruction would result in prejudice to
the partying requesting it.  Hatch v. Maine Tank Co., Inc., 666 A.2d 90, 94 (Me.
1995); Dumont v. Shaw's Supermarkets, Inc., 664 A.2d 846, 847 (Me. 1995). 
We review jury instructions in their entirety for legal error.  Dumont, 664 A.2d
at 847.  When a party has made a timely objection pursuant to M.R. Civ. P. 51(b)
to the court's instructions to the jury, an error in the instructions or in a
refusal to give a requested instruction is reversible error only if it results in
prejudice.  Id.; Brae Asset Fund, L.P. v. Adam, 661 A.2d 1137, 1140 (Me.
1995).
	[¶5]  A violation of a safety statute is evidence of negligence and the court
should instruct the jury as to the legal effect of any such violation.  French v.
Willman, 599 A.2d 1151, 1152 (Me. 1991); Dongo v. Banks, 448 A.2d 885,
889-90 (Me. 1982).  Whether a particular building code ordinance applies to
the facts of a case is a question of law for the court.  Swallow v. City of
Lewiston, 534 A.2d 975, 977 (Me. 1987).
	[¶6]  The 1990 version of the BOCA code, adopted by the City of South
Portland, provides:

3000.1 Scope:  The provisions of this article shall apply to all
construction operations in connection with the erection,
alteration, repair, removal or demolition of buildings and
structures.

SECTION 3006.0 PROTECTION OF PUBLIC AND WORKERS

3006.1 General:  Wherever a building or structure is erected,
altered, repaired, removed or demolished, the operation shall be
conducted in a safe manner and suitable protection for the general
public and workers employed thereon shall be provided.

SECTION 3013.0 PROTECTION OF FLOOR AND WALL OPENINGS

3013.4 Guardrails:  All floor and wall openings shall be protected
with substantial guardrails and toe boards in accordance with ANSI
A12.1 listed in Appendix A.{1}

	[¶7]  The BOCA code applies to "all construction operations in
connection with the erection, alteration, repair, removal or demolition of
buildings and structures."  BOCA § 3000.1.  Nothing in the language of the
BOCA code limits its application to the party who owns the building or the
party ultimately responsible for the construction project. 
	[¶8]  At the time of Russell's accident, Accurate was engaged in the
removal of asbestos, a construction operation.  Accurate was preparing the area
for asbestos removal and had already placed a sheet of plastic over the hole
through which Russell fell.  Additionally, an Accurate supervisor had instructed
Accurate workers to construct a barricade around the hole, but the job had not
yet been completed by the time Russell inspected the area.  Because Accurate
was engaged in a construction operation that explicitly falls within the purview
of the BOCA code, Accurate was bound to comply with the code's strictures. 
Accordingly, Russell was entitled to an instruction on the effect of a violation of
the BOCA code.  
	[¶9]  Accurate is not absolved of its responsibility, imposed by the BOCA
code, to conduct its operations in a safe manner and to provide suitable
protection for workers employed on the site simply because Russell was
inspecting Accurate's work at the time of her accident.  Similarly, Accurate's
contention that Russell is not a member of the class the BOCA code is intended
to protect is without merit.  The BOCA code is intended to protect both the
general public and workers employed on the premises.  BOCA § 3006.1.
	[¶10]  Having concluded that the trial court erred by not issuing the
requested BOCA instruction, we further conclude that the error resulted in
prejudice to Russell.  At trial the court did not allow Russell to use the words
"rules," "regulations" or "codes" in the context of the existence of any
applicable safety statutes.  Further, Accurate argued to the jury that there were
"no hard and fast rules that apply to this situation . . . ."  Although the jury did
find Accurate negligent, it also found Russell negligent and reduced her
damages from $36,055 to $7,495. We cannot say that Russell was not
prejudiced by the court's failure to instruct the jury on the effect of a BOCA
violation.
	The entry is:
Judgment vacated.  Remanded for further proceedings
consistent with the opinion herein.

Attorney for plaintiff: Stephen B. Wade, Esq. (orally) Skelton, Taintor & Abbott P O Box 3200 Auburn, ME 04212-3200 Attorney for defendant: William A. Fogel, Esq. (orally) Danile G. Lilley Law Offices, P.A. P O Box 4803 Portland, ME 04112
FOOTNOTES******************************** {1} The particular ANSI requirements for guarding a floor opening are not relevant to this appeal.