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Loss Control Quarterly A__P~lication of the l~ague of Minnesota Cities Insurance Trot l~al11993 Number 22 Liability for building code administration Thomas L. Grundhoefer, LMC~ Consider the following situation. Smith[own is a rapidly growing ¢om. mur~i~. Residential development has increased 100 percent over the Ias[ 10 years. Smithtown's building inspec- tion department consists of Joe, who has been Smithtown's only building official nor the past 25 years, and a single support staff person, Joe gener- ally works about 50 hours per week, reviewing plans and conducting the required inspections under the state building code. Smith[own has a num: bet of different contractors working within the community., some are more financially stable tha~ others. Recently. an angry homeowner sued Smith[own because Joe apparently Overlooked a deficient construction item on the homeowner's recently con- structed home, The homeowner also believes [hat Joe was negligent in issu- ing a certificate of occupancy for the home when it was not adequately con- structed. The homeowner also sued his contractor, Poor Construction, Inc. bu: not surprisingly Poor Constructior is no longer in business, having filed bankruptcy six months earlier. If the preceding scenario hits too close to home, you are probably not alone. Cities and their building officials Senior Staff Counsel have come under increasing public scrutiny for the way they conduct build- ing Jnspec:ions. Over the past several years, building practices in Minnesota have been a subject of a number of newspaper articles, legislative activi- ties, and even an i-team report. (The I- team is a group of investigative report- ers for WCCO-TV in Minneapolis/St. Paul.) At the same lime. the League of Minnesota Cities Insurance Trust (LMCIT) has seen an increase in the number of complaints from angn/ homeowners claiming negligent building insl2ection practices. ~'Fortunately for Minnesota cities, the courts continue to afford protection to cities for [~qeir inspection and permit issuance activities. This article will at. tempt to define the current law in Minne- Live ADA teleconference The State of Minnesota is host.rig a live ~eleconference Thursday, October 28 on the Americans with Disabilities Act (ADA). The telecon- ference will be broadcast at public agencies throughout Minnesota and will begin at 9:00 am and conclude by 3:30 pm. Presenters will be ~om the Attorney General's Office and the Minnesota State Council on Disabitity, The telecor, ference wilt give participants detailed informal, ion about ADA, the federal leoisla[ion which guarantees equal rights for people with disabilities. EmphaSis will be placed on employment Title I of the act and accessibility Title I1, Participants will be able :o ask questions cf oresenters. Contact Nell Doughty. Department of Human Services, ¢612} 296-2113 for registration information. · sofa regarding building inspection activities, tt also offers some constn~c- tive suggestions cities might use to t~ead off complaints, AS many cities well know, even though they may r~ot ultimately be found liable, the time. ex- pense, and inconvenience associ- ated with defending these ciaim$ can be penalty enough. Current law Historicafty, courts have differenti- ated between "public duties," those owed to society as a whole, ~ "spe- cial duties,' ~ose owed to particular individuals. They have said that public duties cannot provide the ~undation for a negligence action, The courts have said that since building inspec- tions invorve the enforcement of a state- wide law designed to protect society as a whole, these actMties create only a public duty. Failure to properiy ad- minister the building code will there- fore, generally, not result in a finding of negligence against a city. On the other hand, if a homeowner is able to estab- lish the existence of a special duty. then the homeowner may~ create a valid action against = city. The courts have looked at four fac- tors to de[ermine if a city owes a spe- cial duty to a particular landowner. Those four factors include: 1. Actual kr~wledge of a dangerous conditior~; Continued on page 2 MINNESOTA CITIES ! OCTOBER 1993