5.11. SR 01-16-1996 - Laserfiche WebLink

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. 2 / LOSS CONTROL QUARTERLY FALL 1993 Continued from page 1 2, Reasona01e reliance on representa- tions a building ofl~cial made; 3. The existence of a special statute designed to protect a special class of individuals: and 4. The building inspector has increased the dsk 0¢ harm t.o a ioarticular prop- arty owner. Rarely do the third ~J'~d fourth fac- tors come into play. The state building code according to the courts is not 8 special statute designed for the pro- tection of a particular class of individu- als. Similarly, building inspections are not generally viewed as increasing the risk of harm to particular individuar,~. Most of the legal analysis in this area has centered on whether the city had actual knowledge of a particular code deficiency and whether a property owner could have reasonably relied o~ representations made by a building official. In viewing the actual knowledge requirement, the courts stated tl~e buildir~g inspector must have actually viewed or witnessed a building infrac. tion or deficiency in order [o meet [his [actor. In most cases, buildin9 inspec- tors will not knowingly sign off on an inspection if [hey are aware of code violations. Typically what happens is through inadvertence or oversight, an inspector will miss a code violation. The courts have been faJdy clear thai inadvertence or simply missing an in- fraction does r~t result in the city being liable, Regarding [he reliance factor, the courts have said that generalized reli- ance upon the fact that an inspection was conducted is not enough to meet this factor. Recently, t;qe Minnesota Court of Appeals reiterated that build- ing inspections and issuance of buitd ing permits are not meant to be guar.. antees to property owners that a home is in full compliance with the Minnesota state building code. The courts have atso looked at whether issuing a certif,2ate of occu- pancy to a homeowner might be a '900d housekeeping seal of approval" upon which property owners can rea- sonably rely. Again. the Minnesota Court of Appeals recently affirmed that issuance of a certificate of occupancy - . I is a protected discretionary function '.'. Loss COntrol Quarterly" courts have found a specia ' ' ~ \l duty exists only when a building ,Edit. o.r: .:.. ' ' ..::. '.X ~l spector steps out of the public role and .LMCrrStaffAttorne-j~,:,~,.'.;.'..~:.~.'..Jl sultant. For instance where a ':')~,oma~.~eru.ndh.,~.~~.,~¢,=~J homeowner has consu ted and asked ,. .... . ,. ,,~,,. ,- e ngpector to a e spec fic racom. .... ~.' '. - ' "' ' .... '.' .,. ..... "~ .~ ,ng or oes~gn metr~odo ogy cour[s nave quarterly by the:League of Minnesota ' Cities Insurarlce Trust for. lbo purpose of educating and informing ckias about loss.. contro~ methocte and risk management.,.. The opinion~'..~xp, re. ssed in'~i~, publication ate those'of the autrio~ and ate not intencled to provide specific legal advice. : League o! Minnesota Cities." Insurance Tru~ 3490 Lexington Avenue North St. Paul, Minnesota 55126 . In light of recent case law &qd the increased litigation cities are facing, there am a couple practical sugges- tions which cities may want to look at in order to head off ctaims adsing out of building code administration. Provide an advisory statement when issuing permits. While those in the building construction trade know that building inspections are not a guar- antee, the general public !2robably may not hold the same view. Homeowners who have had an inspector approve their construction plans and have re- ceived a certificate of occupancy prob- ably feel tibet they can rely on these appcovals, To counter this perception, we sug- gest that cities develop a form to hand out with the building permit and certifi- cate of occupancy which spells out in no uncertain terms 'that 'the issuance of permits and the inspections conducted does not constitute any sort of guaran- tee from the city that the home is in perfect compliance with the state build- ing code. The form may even want to suggest that a homeowner procure the services of a pdvate inspector if they desire tl~e additional protection. By giving out this advisory when issuing permits, cities may be able to head off the misguided litigation which orlon results when a contractor's work is not up to the Clualit'y [he homeowner expected .... Avoid acting like a consultant, ~f the building inspector steps out of the public rote and acts as an advisor to the homeowner or the contractor it can cause problems, While it may seem like the "nice" thing to do, it can result in liability exposure for the city,. AS a general rule, city inspectors should avoid taking on this role. At [he very least, if an inspector is going to get involved in solving unique problems encountered a[ building sites, we recommer~d the cify develop a waiver form. For instance, if the homeowner asks for help solving a problem the inspector should ask the homeowner to sign a document re- leasing the city from any liability that may result from following the inspector's . suggestions. The city would want the homeowner to sign the waiver form prior tO the inspector making any rec- ommendations. Conclusion While the courts continue to afford a wide amount of !:yotection to cities in the building inspection area, the cost of defending these claims has become very significant, Additionally. the nega- tive publicity these cases can generate is also costly. Consequently, LMClT suggests that cities take a hard look at their building inscection practices in order to better educate the public about what inspections and permits are meant to represent. · 32 II II I MINNESOTA CIrl'IES I OCTOBER lgg3