Builder Repairs Everyone's Deck After Deck Collapse Yet Still Denies Responsibility

[jar546]

What I find interesting is that after this deck collapse, the building told all of the other homeowners not to use their deck, then proceeded to fix all of the decks, had the balls to say the collapse was not their fault. Really? They then drag their sub and the city into the lawsuit.

In this case, the city reached a settlement agreement with the builder.

In my opinion:

1) The builder has a responsibility to check the work of their subs. This is their supervisory responsibility.
2) The sub-contractor obviously screwed up.
3) The city clearly dropped the ball and whatever inspectors signed off on this were and probably are incompetent.

 

[ICE]

When you say "builder" do you infer that to be the developer or the general contractor? The developer should not be held responsible whereas a general contractor should be held responsible. The city is in Canada and if I recall correctly, the Canadian members have said that there is no qualified immunity granted to Canadian building departments.

Missing lag bolts is reason enough to fire the inspector. I am curious to know what the plans specified. Beyond the decks is a house... a house that was presumably inspected by the same crew that handled the decks. That would bother me.

It is noteworthy that the guard rails are not secured to the building.

It is difficult to be sure from the video, but is there flashing that would have been above the ledger?

 

[Yankee Chronicler]

When you say "builder" do you infer that to be the developer or the general contractor? The developer should not be held responsible whereas a general contractor should be held responsible. The city is in Canada and if I recall correctly, the Canadian members have said that there is no qualified immunity granted to Canadian building departments.

You can generally only sue whomever you have a contract with. The residents probably didn't buy their units from the general contractor, so they have to sue the developer (or whoever it was they bought from) because that's the contractual chain. The developer can then implead the general contractor (if the developer didn't act as the GC), and then the GC can implead subcontracrors, etc.

I saw this in action a few years ago. A mechanical contractor had lost big money on an alteration project because of poor architectural and M/E/P drawings. After the job was finished, he sued the A/E firm. I was brought in as a code consultant and architectural professional opinion. My first reaction was that he was correct about the drawings being unclear, but I also told him I thought he was wasting his time suing the A/E because his contract was with the developer. His attorney assured me and my client that he could sue the architect directly, so I wrote up my report and sat through a full-day deposition. My client also separately hired a mechanical engineer, who also wrote up a report and sat through a deposition.

When it finally got to court, the judge threw the case out -- because my client didn't have any contractual relationship with the A/E firm, so they didn't owe him any duty to provide accurate construction documents. He should have sued the developer, with whom he did have a contract. Unfortunately, he had signed an unconditional release to the developer as a condition of receiving his final payment under the contract, so he couldn't sue the developer.

"Privity of contract" is the legal term.

That's under U.S. law. It may be different in Canada.

 

[ICE]

You can generally only sue whomever you have a contract with.

That makes sense from a legal perspective... but not from a practical standpoint. Developers rely on general contractors and the public relies on the government. In a case such as this deck failure I would hold the government most responsible.

It's the lag bolts at deck ledgers. What could be more obvious than missing lag bolts at deck ledgers? I can't get over the fact that nobody noticed the missing lag bolts.. There should have been HD's with all-thread but "should have" don't count.

 

[tbz]

ICE,

From someone who has been specializing in Guards and Handrails for 3 decades now, we highly recommend against attachment to the home's siding, unless the architect, framer and the exterior finisher have designed and provided a specific attachment point.

Most homes built in the last 30 years or so we find that there is really never any real material or solid attachment that won't end up deteriorating and allowing water to intrude.

Thus, the rule of thumb today is never mount to anything you can't fully confirm was designed for the attachment.

I always designed not to attach the top molding directly to the building, but rather secure through the base structure alone.

 

[Yankee Chronicler]

That makes sense from a legal perspective... but not from a practice standpoint. Developers rely on general contractors and the public relies on the government. In a case such as this deck failure I would hold the government most responsible.

It's the lag bolts at deck ledgers. What could be more obvious than missing lag bolts at deck ledgers? I can't get over the fact that nobody noticed the missing lag bolts.. There should have been HD's with all-thread but "should have" don't count.

Under the ICC codes as adopted by my state, building officials are indemnified -- but the governmental agency they work for is not. I agree that the public has a right to rely on building officials and inspectors to do their jobs correctly, so that duty essentially becomes the same as privity of contract in the private sector. So, yes -- the people can likely sue the municipality or county if an inspector obviously missed a glaring defect. It may get interesting if (as I would expect in a multi-family building) the work was subject to special inspections. That brings into question the performance of the special inspector, and the adequacy of his/her reports.

FWIW -- indemnification doesn't mean you can't be sued personally, it just means if you lose the governmental entity you work for pays the judgment. I was sued almost twenty years ago -- along with my boss (the BO), the ZEO, the mayor, and I think a few other people. We were each named personally as well as the town being named as a defendant. The town's insurance paid for our defense attorney, and we got a good one. The case was ultimately thrown out of court, but not before we each had to sit through lengthy depositions. I know I lost a lot of sleep over it, and I imagine the other officials who were named did likewise.

IBC 2021:

[A] 104.8 Liability. The building official, member of the
board of appeals or employee charged with the enforcement of
this code, while acting for the jurisdiction in good faith and
without malice in the discharge of the duties required by this
code or other pertinent law or ordinance, shall not thereby be
civilly or criminally rendered liable personally and is hereby
relieved from personal liability for any damage accruing to
persons or property as a result of any act or by reason of an act
or omission in the discharge of official duties.

IBC 2021 Commentary:

The building official, other department employees and
members of the appeals board are not intended to be
held liable, civilly or criminally, for those actions performed
in accordance with the code in a reasonable
and lawful manner. However, the responsibility of the
building official in this regard is subject to local, state
and federal laws that may supersede this provision.
This section further establishes that building officials
(or subordinates) must not be liable for costs in any
legal action instituted in response to the performance
of lawful duties. Section 104.8.1 states that those
costs are to be borne by the state, county or municipality,
as applicable. The best way to be certain that the
building official's action is a “lawful duty” is always to
cite the applicable code section on which the enforcement
action is based.

IBC 2021:

[A] 104.8.1 Legal defense. Any suit or criminal complaint
instituted against an officer or employee because of an act
performed by that officer or employee in the lawful discharge
of duties and under the provisions of this code shall be
defended by legal representatives of the jurisdiction until the
final termination of the proceedings. The building official or
any subordinate shall not be liable for cost in any action, suit
or proceeding that is instituted in pursuance of the provisions
of this code.

IBC 2021 Commentary:

This section establishes that building officials (or subordinates)
must not be liable for costs in any legal
action, whether criminal or civil in nature, in response
to the performance of lawful duties. This section states
that these costs must be borne by the state or municipality.
The best way to be certain that the building official’s
action is a “lawful duty” is always to cite the
applicable code section substantiating the action.