Construction Forecast Issue Home

March 30, 2000

Building code inspections no defense for contractors

You can’t rely on public officials to ‘educate’ you about your code responsibilities

By JEFFREY G. FRANK and GREG BARTHOLOMEW
Bullivant Houser Bailey

You’re a contractor. Someone sues you for water intrusion damages. They say your construction violated the building code. You think, "Hey! The code inspectors came out and inspected the thing, and they said everything was fine. You can’t sue me now saying that I didn’t build to code!" Right?

Wrong.

You can pretty much forget the idea that just because a building code inspector approved your project, that approval will insulate you, as the contractor, owner, architect or engineer, from liability for failure to comply with the code. The fact that your project passed code inspection will not be accepted by the court as establishing that the project actually complied with code. It may not even be admissible as evidence of compliance. The law says:

Issuance of a building permit does not implicitly imply that the plans submitted are in compliance with all applicable codes. Nor do periodic building code inspections implicitly imply that the construction is in compliance with all applicable codes. Building permits and building code inspections only authorize construction to proceed; they do not guarantee that all provisions of all applicable codes have been complied with.

In fact, in the 1990’s the city of Seattle made a conscious decision not to even try to inspect for compliance with requirements for flashing, weather barriers, roofing, etc., precisely the type of compliance issues that are likely to get you in trouble! Because of inadequate staffing, concerns about over-regulation, and higher priority safety issues, the city elected not to inspect for building envelope issues. Whether this decision by the city was the correct decision may be questioned by the numerous Seattle homeowners who now find themselves paying as much as the original price of construction, and sometimes more, to repair water intrusion damage. In other words, approval by a city of Seattle building inspector literally meant absolutely nothing with regard to water intrusion barriers.

Regardless of what the public officials say or do, the law says it is your job to know the code and comply with it. Seattle’s Municipal Code declares that "The obligation of complying with the requirements of this Code and the liability for failing to do so is hereby placed upon the owner and/or occupant or persons responsible for the condition of the buildings or premises." And the Washington Supreme Court has said, "The burden of compliance with codes, regulations and ordinances remains the responsibility of the applicant." The fact that public officials failed to enforce code requirements does not relieve you from liability for your failure to comply with the code. Under most circumstances, governmental entities have no duty to advise applicants about building code requirements or to tell them about any code violations.

Washington courts apply what is known as the Public Duty Doctrine. That doctrine holds that the duties imposed on governmental entities by state and municipal laws are duties owed to the public in general, but they are not duties the government owes to you. With a few significant exceptions.

Washington law recognizes four exceptions to the Public Duty Doctrine, two of which may be pertinent to building code violations. Those two exceptions are the "failure to enforce" exception and the "special relationship exception." The other two exceptions are the legislative intent exception and the rescue doctrine.

Don’t be fooled by the name of the "failure to enforce" exception. That exception requires more than just the public agency’s failure to enforce the code. The exception requires that a governmental agent had actual knowledge of a statutory violation, but failed to take corrective action despite a statutory duty to do so. In cases involving the building code, you must show that the code violations constituted "an inherently dangerous and hazardous condition."

In order to establish the "special relationship" exception, you must first show that you had direct contact with the public official. Next, you must show that the official, in response to a specific inquiry, provided express assurances that the building was in compliance with the code. And, finally, you must show that you reasonably relied on the representations given by the official. If you did not ask the building inspector a question specifically about the aspect of the building which is now the subject of the suit against you, the exception does not apply. If the inspector didn’t exactly say anything about it, the exception does not apply, even if it was reasonable for you to interpret the inspector’s silence to mean your work was fine. And if you knew the project was out of compliance even when the inspector told you otherwise, again the exception does not apply.

Even if one of the exceptions does apply, you will still be liable for your failure to comply with the code. These exceptions to the Public Duty Doctrine do not create a defense for contractors. The primary benefit to you, if one of the exceptions apply, is that the City or County may share your pain. The injured party may add the public agency as an additional defendant, creating one more pocket from which the damages may be paid. Or you may be able to bring a claim for contribution or indemnity against the public agency, asking them to reimburse you, in whole or in part, for whatever liability you may have.

The Washington courts have been quite clear that you may not rely on public officials to "educate" you about your code responsibilities. The law assumes that you know what the law says, and the courts will hold you responsible for complying with the law. If you have any uncertainty, ask the inspector a specific question and get a specific assurance about the nature of the code requirement and/or about your compliance with a particular aspect of the code. And, preferably, get it in writing.