The role of building codes in slip and fall litigation
General purpose and use of building codes
Counties and municipalities have a set of rules and specifications regulating the manner in which buildings are constructed. Collectively, these rules are referred to as the building codes. With few exceptions, these codes are adopted from model codes propounded by various agencies. The major modern codes are the Life Safety Code (LSC), Uniform Building Code (UBC), Standard Building Code (SBC), Building Officials and Code Administrators International (BOCA), Minimum Property Standards (MPS) propounded by the United States Department of Housing and Urban Development, and the International Building Code (IBC).
Building codes and regulations have only been adopted by larger cities and counties since approximately 1920. The first of the uniform codes was propounded about 10 years later. Buildings erected before the adoption of a building code may be covered by subsequent codes if there has been a change in the type of occupancy or extensive remodeling. If the safety features have not been maintained, the building may be in violation of the current building code under an “Applicability to Existing Buildings” section.
The express purpose of most building codes, as stated in §101.2 of the UBC, is to “provide minimum standards to safeguard life, limb, health, property and public welfare by regulating and controlling the design, construction, quality of materials, use and occupancy, location and maintenance of all buildings and structures and grading and certain equipment specifically regulated [t]herein.” Note that maintenance is a specifically designated area of regulation.
Building codes only provide minimum standards, without which there would be an unconscionable disregard for safety. The codes do not represent the optimum level of safety nor do they necessarily reflect the custom and practice within the building industry. In some areas, industry custom and practice may involve more stringent safety requirements.
The building codes are useful tools in establishing the elements of duty and breach in a slip and fall case. ***Link to Elements article.*** The duty under the law is to provide ordinary care under the circumstances to prevent an unreasonable risk of harm. Thus, circumstances may dictate greater precautions than the building codes require.
Application of building codes to existing buildings
The specific requirements contained in the various building code sections apply to buildings completed when the code was in force. For example, a building built in 1990 would likely meet the requirements set forth in the building code in force at that time. In the case of the Uniform Building Code, the 1988 edition would be the controlling code. Any subsequent changes in the code would not apply to that 1990 building.
Handrails have been subject to specific requirements since the building codes were first published, but these requirements have changed from time to time. In 1988, handrails were required to extend six inches past the nose of the top and bottom riser. In 1991, this requirement was changed to 12 inches. There was no requirement that an additional six inches be added to the existing handrails. Such retro-fitting would create chaos within the building industry. In some cases, the entire building would have to be demolished in order to re-size the stairway or exit facility.
Maintaining a safe condition of the building
Section 104(d) of older editions of the UBC and §3402 of the 1994 edition charge the building owner or the designated agent with maintaining a safe condition of a building, existing or new. These provisions are effective regardless of when the building was built. The International Building Code (IBC) (§3401.2) similarly requires safe maintenance of existing buildings; owners are required to investigate and evaluate the existing building for fire safety, means of egress, and general safety whenever there is a proposed repair, alteration, addition or change of occupancy. Defects such as inadequate handrails, substandard stairways, changes of level in the exit systems, and similar physical conditions should be detected at this time. There is no requirement in the code for periodic inspections for hazards or defects.
Safeguarding the general welfare
Safeguarding the public’s general welfare is an integral part of the intent of the International Building Code. This is accomplished by relevant sections of Chapter 32, which are intended to ameliorate the conditions found in substandard and dangerous buildings. The adoption of modern Uniform or International Building Codes has raised the general level of building safety and quality. The maintenance requirements of §3401.2 (IBC) apply to all buildings, both existing and new, and as a result the enforcement of the code slows the development of substandard conditions and therefore contributes to the safeguarding of the general welfare, of the community. Safety is an important part of general welfare, which supports the application of the minimum code and community standards addressed in Chapter 34.
Proving constructive notice based on a failure to inspect in a slip and fall case
As stated above, there are no requirements in the code for periodic inspections to identify and correct building defects that may present hazards to the occupants or to the public. Thus, in order to prove the element of notice in slip and fall case, the injured party (the “plaintiff”) will have to rely on a theory of constructive notice based on a failure to inspect, in light of community and industry practice. For example, nearly every commercial acquisition of property is preceded by a building inspection intended to identify structural defects, code violations and safety hazards. New owners using due diligence could be placed on notice of conditions subject to repair or modification. Commercial property managers usually inspect property under their control on a periodic basis, often weekly or monthly, for use- or weather-related defects and often daily for transient hazards such as debris, fluids or breakage in common areas.