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Premises liability: code? what code?

Updated on June 23, 2015
Code? What code?
Code? What code? | Source

One of the very first questions to arise in any premises liability case is, “What Code governs?”. The answer to that question is often a long and complex one.

First, there may or may not be just one Code binding on the premises. Is there a state or regional code? A local building code? Are there local supplementary ordinances regulating buildings, construction, maintenance or accessibility? A life safety code, or a fire code? A property maintenance code? A plumbing code? A mechanical code? An electrical code? Do any Federal regulations apply? Any tenant-landlord law? Thorough research is required to identify any and all Codes that may apply to the particular premises.

Second, timing will also likely be a factor. Were the premises permitted, constructed, inspected or approved under outdated editions of any Codes? Were they substantially altered or expanded during the effective terms of any later Code editions? Do the applicable Codes contain any timing ‘triggers’ or thresholds that determine when updated Code provisions might apply? Bear in mind that virtually all Codes and ordinances undergo frequent or periodic amendment, and their applicability to elements of the subject premises may therefore well change over time.

Third, local approvals, citations and actions may modify the Codes’ applicability to the premises. In many jurisdictions, a duly authorized local building official may permit variations from strict Code adherence for good cause. Many Codes in fact incorporate language that allows for alternate ‘reasonable accommodation’ to various Code requirements. It is therefore wise to obtain all public records related to the history of the design, submittal, review, construction, inspection and code-compliance of the premises.

Fourth, Codes are not all that bind the premises. A local health board, water or sewer district may regulate the design or construction of various building elements. Hazard abatement or quality of life ordinances may require modifications to premises, or may mandate maintenance standards. Local fire officials may establish additional fire or life safety standards, inspections, or approvals that apply.

Fifth, the professional fields of architecture, design, planning and construction have standards of their own. Furthermore, those standards apply not only to professional conduct, but also to aspects of premises design, layout, and access, as well as specific physical construction and maintenance requirements. Such normal prevailing industry standards can be considered just as binding as requirements embodied in Codes and ordinances.

Sixth, the manufacturers of virtually every material, product, assembly, appliance or fixture incorporated into the construction of the premises have their own recommended minimum standards of construction, installation, maintenance and servicing as well. Whether the premises liability concerns the strength of a handrail, the thickness or safety of glazing, the water-resistance of exterior cladding, the slipperiness of floor tile, or the fire-resistance of wallboard, manufacturer standards may have direct bearing and applicability.

In conclusion, determining exactly what Codes (and which Code and other provisions) apply to a particular premises liability case requires the thorough research and analysis skills of a professional Expert Witness versed in the above considerations. To find the right Codes for your premises liability case, feel free to contact me at any time via LinkedIn, or at rickz@roadrunner.com or 440.390.2414.

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