Tag Archives: violation of building code

FLOWING DOWN LIABILITY IN CONSTRUCTION DEFECT LAWSUITS

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In construction defect lawsuits, third-party (or fourth-party) claims are routine to flow-down liability downstream.  Right, a general contractor sued by an owner will want to flow-down its liability to the subcontractors.  And, subcontractors will want to flow down their liability to sub-subcontractors and suppliers.   Common, and appropriate, flow-down claims are indemnification and contribution claims. 

 

In an appellate opinion with little factual discussion, Gozzo Development, Inc. v. Esker, 2016 WL 2908442 (Fla. 4th DCA 2016), the trial court entered summary judgment in favor of subcontractors dismissing the contractor’s indemnification and contribution claims.  The owner sued the contractor for a violation of building code (and corresponding defects and damage) and the contractor, in turn, sued subcontractors for indemnification and contribution.  The contractor was seeking indemnity for the statutory building code violations as well as contractual breaches that caused the construction defects and damage. 

 

On appeal, the Fourth District reversed the trial court’s summary judgment as to the indemnification claim, but affirmed the trial court’s dismissal of the contribution claim (as Florida abolished joint and several liability in negligence-based actions):

 

Further, as appellant [contractor] sought indemnity for violations of both statutory and non-statutory building standards, it was error to grant summary judgment on the indemnity claim under a provision that applies only to statutory liability. The statutory building code does not preclude liability for violating a contractual duty to adhere to local building standards.

However, we affirm the trial court’s summary judgment on the contribution claim, as appellant’s right to contribution had not arisen by the effective date of the revised statute barring joint and several liability.

Gozzo Development, 2016 WL at *1. 

  

It is important to understand the manner in which liability is flowed downstream (passed-through) in construction defect lawsuits.  It is generally this reason why construction defect lawsuits contain many parties, from the general contractor hired by the owner to the subcontractors, sub-subcontractors, and suppliers implicated by the defective work.   These articles on indemnification (common law and contractual) and contribution explain these very important flow-down claims in more detail. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

VIOLATION OF THE BUILDING CODE IS A QUESTION OF LAW

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In construction defect disputes, oftentimes the owner (or developer or association, as may be applicable) will assert a claim against the general contractor, and perhaps, subcontractors for a violation of the building code.  Such a claim is authorized pursuant to Florida Statute s. 553.84 that provides:

 

Notwithstanding any other remedies available, any person or party, in an individual capacity or on behalf of a class of persons or parties, damaged as a result of a violation of this part or the Florida Building Code, has a cause of action in any court of competent jurisdiction against the person or party who committed the violation; however, if the person or party obtains the required building permits and any local government or public agency with authority to enforce the Florida Building Code approves the plans, if the construction project passes all required inspections under the code, and if there is no personal injury or damage to property other than the property that is the subject of the permits, plans, and inspections, this section does not apply unless the person or party knew or should have known that the violation existed.

 

A violation of the building code serves as evidence of negligence by the offending party.  See Russ v. Wollheim, 915 So.2d 1285, n.1 (Fla. 2d DCA 2005) (“A building code is designed to protect the general public rather than a particular class of individuals, and therefore, violation of a building code is merely evidence of negligence.” )

 

But who determines whether an asserted defect, error, or omission constitutes a violation of the building code?  Is this a question of law for the judge?  Or, is this a question of fact for the jury (in a jury trial)?  Remarkably, cases have held that a violation of a building code, a complicated and rather specialized issue, is a question of law for the judge to determine.

 

In Edward J. Seibert, A.I.A. Architect and Planner, P.A. v. Bayport Beach and Tennis Club Ass’n, Inc., 573 So.2d 889 (Fla. 2d DCA 1990), a condominium association filed suit against the architect among others.  The jury found that the architect was liable for violating the building code in the fire exit design even though the design had been approved by the building department upon the issuance of the building permit. To support this violation, the association had an expert testify regarding his interpretation regarding the building code. The architect testified that his design complied with the building code and had two supporting expert opinions.  The verdict form asked the jury if the fire exist design complied with the applicable code.  The Second District held that the interpretation of the code was a question of law that should not have been submitted to the jury.

 

They [the parties] instead presented conflicting opinions as to how the code should be interpreted. The jury was allowed to determine the meaning of the code and then whether Seibert [architect] violated the code by designing only one fire exit. This was error. An expert should not be allowed to testify concerning questions of law, and the interpretation of the building code presented a question of law.

 

It was the duty of the trial court to interpret the meaning of the code and instruct the jury concerning that meaning. Any conflicts in interpretation were for the court to resolve and their resolution was not a jury issue.

Edward J. Seibert, 573 So.2d at 891-9 (internal citations omitted).

 

Further, in Lindsey v. Bill Arflin Bonding Agency, Inc., 645 So.2d 565 (Fla. 1st DCA 1994), a personal injury plaintiff sued an owner for slipping on a wet spot on stairs.  The plaintiff claimed that the stairs lacked handrails in violation of the building code.  The owners relied on testimony from a building department official opining that handrails were not required based on his interpretation of the code / ordinance at-issue.   The First District, however, found:

 

Expert testimony as to the meaning of an ordinance is not appropriate when the disputed language consists of “ordinary words susceptible to being given plain effect consistent with their ordinary meaning.” The legal effect of a building code presents a question of law for the court, not a question of fact for the jury. While expert testimony may be relevant and helpful to the court where a statute or ordinance contains words of art or scientific and technical terms, even then such testimony cannot dictate the court’s construction of the enactment.

Lindsey, 645 So.2d at 568 (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.