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Whaley v. Perkins7/21/2005
t is not negligence per se, although it may be evidence of negligence. Thus, while violation of a statute or ordinance may be in and of itself a negligent act or omission, it does not necessarily constitute actionable negligence, or make out an absolute case of liability, and is not tantamount to strict liability, since other elements must co-exist to make the negligence actionable.
In order for a statute or regulation to be applied to establish a standard of care under the theory of negligence per se, a statute or regulation must at a minimum promote public safety and have been enacted to protect persons in plaintiff's position or to prevent the type of accident that occurred, and must also impose specific duties on defendant. It must not merely repeat the common-law duty of reasonable care, but it must set forth specific guidelines to govern behavior. The test to determine whether a violation of a statute may constitute negligence per se depends upon legislative intent; legislative intent is primarily determined by the language of the statute, the purpose of the statute, and the nature of the evil the statute sought to remedy.
65 C.J.S. Negligence ยง 136 (2000). We must, therefore, determine the legislative intent of the subdivision ordinance at issue in this appeal in order to determine whether the trial court erred in charging the jury on this count.
Under T.C.A. 13-3-403, "the regional planning commission shall adopt regulations governing the subdivision of land within its jurisdiction." The statute goes on to set forth the purpose for such regulations:
Such regulations may provide for the harmonious development of the region and its environs; for the coordination of roads within the subdivided land with other existing or planned roads or with the state or regional plan or with the plans or municipalities in or near the region; for adequate open spaces for traffic, light, air and recreation; for the conservation of or production of adequate transportation, water, drainage and sanitary facilities; for the avoidance of population congestion; and for the avoidance of such scattered or premature subdivision of land as would involve danger or injury to health, safety or prosperity by reason of the lack of water supply, drainage, transportation or other public services or would necessitate an excessive expenditure of public funds for the supply of such services.
The subdivision ordinance in question here is the Shelby County Code, Appendix B ("the Subdivision Ordinance"). The Subdivision Ordinance sets includes its own statement of purpose:
Purposes.
These regulations are adopted for the following purposes:
A. To protect and provide for the public health, safety and general welfare.
B. To guide the future growth and development of the city/county in accordance with the comprehensive plan, transportation plans, and other approved or adopted plans and policies.
C. To protect the character, and the social and economic stability of all parts of the county and to encourage the orderly and beneficial development thereof.
D. To protect and conserve the value of land, the value of buildings and improvements thereon, and to minimize conflicts among uses of land and buildings.
E. To prevent overcrowding or overdevelopment of land and undue congestion of population.
F. To guide public and private policy, and action to provide adequate and efficient public facilities.
G. To provide sufficient and effective traffic circulation with particular regard to the avoidance of congestion on streets and highways, the safe accommodation of pedestria
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