Liability For An Inadequate System?

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Liability For An Inadequate System?

Building Inspectors' Dilemma

By KATIE KUEHNER-HEBERT

San Diego Daily Transcript

Dec. 17, 1998

Should government building officials be held accountable if construction

inspected by them is later shown to be defective?

In California, as in 47 other states, inspectors are immune from any

liability as the State Legislature has long ago adopted recommendations from

the International Conference of Building Officials.

The ICBO recommends cities and counties have immunity from lawsuits for

defective construction -- even if building inspectors have been negligent in

enforcing standards and codes created to protect the public's safety.

An attorney who has represented both homeowner associations and developers

on both sides of construction defect litigation believes that government

officials should be held accountable -- or at least implement additional

safeguards to reduce the risk of shoddy construction practices.

A city attorney, on the other hand, believes the ultimate responsibility for

safe buildings lies with those who are actually performing the work --

contractors and developers.

" What most people don't know, except those in the building industry, is that

just the fact that a building is inspected by a building official and

certified for occupancy does not mean that it complies with all aspects of a

building code, " said , an attorney with the Pasadena-based

law firm, & Harman.

" The inspection by the building department and the approval of a building

doesn't mean anything. What really infuriates me is that California

consumers don't know that they can't count on the building department to

protect them.

" It's a real predicament for California consumers, because the immunity

problems and the building departments' inability to properly police builders

has meant that the only source of control ends up being in the courts.

That's an inefficient way to police an industry. "

Poway City Attorney Steve Eckis said that taxpayers shouldn't be liable for

the faults of the construction industry.

" The Legislature has determined that the public interest would not be served

by creating liability for what is essentially somebody else's activity, "

Eckis said. " After all, if there's a defect in the building, we didn't

create it -- the contractor did.

" So if we pushed the liability over to government, the taxpayers would have

to pick up the bill. The Legislature has determined that that's bad public

policy. "

One of the reasons building inspectors shouldn't be liable, Eckis said, is

because there are usually not enough government professionals to

continuously monitor construction projects.

" It's an absolute impossibility to think that a building inspector can be at

a project the whole time construction takes place, " Eckis said. " Usually,

when an inspector is called to the site by the contractor, a particular

phase such as the electrical work has been completed and is ready for

inspection. We can only see part of what's been done; the entire system is

not in plain site for us to see. "

" We are looking to see whether or not the building appears to be constructed

in accordance with code requirements, such as the whether a door has

adequate width for fire safety, but we cannot know if it's defect-free, " he

added. " There is a great deal of discretion in the law that allows

contractors to construct buildings any way they want as long as they meet

the code. To transfer to the governmental agency the liability for how the

work was done, when we exercise virtually no control over how it's done,

would be unfair to the taxpayers who would have to pick up the bill. "

If government officials can remain immune from liability, they should at

least reduce the risks for construction defects by beefing up building

departments' monitoring staff, said.

" We need to make some fundamental changes in the way that California cities

and counties govern the construction process, " he said. " In the way we

currently allocate resources to building departments, it's impossible for

authorities to properly do their jobs. Particularly in the post Prop 13 era,

building departments get short-shrifted and do not have the resources to do

their job.

" What needs to happen is that first, the word needs to get out that when you

occupy a building, the only assurance you have that it has been built

properly is from the builder itself, and not from the building department.

" Second, we have to change the way building departments do their job, "

said. " Either we have to admit that it's hopeless for them to be

able to fully do their jobs or we have to give them the resources to do

their job properly. "

One option could be the retention of an independent building inspector for

at least major projects -- to be paid by the developer.

" We can turn the whole system around, at least on large construction

projects, " said. " For example, if 150 condominiums are being

built in Escondido, to properly inspect that project, you almost have to

have somebody inspect it full-time. No city can put a person on a single

project full-time, not even part-time. "

Instead, the independent inspector would be retained for just that

particular project.

" It may cost more money to build the project, but in the long run, it's in

the developer's best interests to spend the money upfront instead of on

lawsuits later on, " he added. " It could reduce the developer's liability by

reducing the probability of obvious construction errors. It could also

reduce the developer's insurance costs and the risk to the ultimate

consumer.

" Whatever we do, we have a system now that's functionally sick and we need

to make some kind of change to allow the building departments to more

properly do their job, " said.

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