Liabilities

LEGAL

LIABILITIES of Engineers, Building Officials Your professional choices and the legal risks that result

very trade, profession, and business up to the standard of care. The standard of care venture involves risks. One of those risks is requires professionals to have the specialized knowlthe possibility of disedge and skill associated with putes. In a civilized society, indi- By KENNETH M. ELOVITZ, PE, Esq. their profession. It also requires Energy Economics Inc. viduals are expected to try to rethem to use judgment in applyFoxboro, Mass. solve their disputes privately. ing that knowledge and skill. When they are unable to do so, • Prove damages and demonthey typically resort to court action. strate that the defendant’s breach of This article presents the fundaduty was the proximate cause of mentals of professional liability for the damage sustained. engineers, identifies the circumA legal action is like a chain. stances under which building To win a case, the plaintiff must officials can be liable for their deciprove each legal element. A single sions, and discusses how engineers missing element—no matter how and building officials can manage small—is like a failed link that the potential liability associated breaks the chain. Sometimes a with novel concepts, equivalency, plaintiff can prove that the and performance-based codes. engineer owes a duty and that the engineer’s conduct caused damage. DESIGN LIABILITY: FUNDAMENTALS However, if the plaintiff cannot Suits against systems designers convince the court that the typically claim that the engineer engineer’s conduct fell below the was negligent. 1 To prevail in an applicable standard of care, the action for negligence, the plaintiff plaintiff will lose. must: REQUIREMENT TO USE CURRENT • Prove that the defendant owes TECHNOLOGY the plaintiff a duty. Engineers in a developing or • Show that the defendant changing discipline might think breached the duty. For engineers they can avoid liability by sticking and other professionals, a breach with tried-and-true methods. occurs if the professional fails to live However, they cannot. Kenneth M. Elovitz, PE, Esq., is an engineering For many years, courts have required professionconsultant who emphasizes the function and perform- als to use current technology. The 1932 case of the ance of energy systems. He has a bachelor’s degree in TJ Hooper2 illustrates that principle. TJ Hooper metallurgy and materials science with highest honors involved two tugs that were towing barges off the from Lehigh University and a juris-doctor coast of New Jersey. The tugs lost the barges in a degree from Suffolk University Law School. He is a storm. The tugs were judged negligent because they member of HPAC Engineering’s Editorial Advisory did not use radios as navigational aids. Even though radios were new, and there was no industry Board, as well as ASHRAE, IEEE, and NFPA.

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standard requiring tug boats to have radios, the tug-boat owners were liable. More recently, an ophthalmologist was liable for malpractice in a case3 where a young patient suffered a loss of vision because of glaucoma. The glaucoma could have been detected early enough to save the patient’s eyesight had the doctor performed a simple, readily available test. The doctor was liable despite the general practice of the profession not to test patients under the age of 40 for glaucoma. Courts seem to look to the availability of the technology and whether its application would have avoided the injury, regardless of whether the technology is widely adopted.

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puter-applications course made this point to his students. He insisted that they solve the first iteration of a problem themselves using conventional methods before allowing a computer to take over. Computers perform calculations quickly and tirelessly. Unlike humans, they do not make errors “crunching numbers.” However, they are programmed by humans using algorithms developed by humans. Therefore, they cannot perform impossible calculations or solve problems that science does not understand. Placing too much faith in computers without understanding the underlying problem leads to errors.

As engineers use computers for more and more tasks, they begin to lose their common-sense feel for when results are correct. Engineers who used slide rules had to understand the problem and figure the answer approximately in their heads or on scratch paper. With computers, it often is easier to make multiple runs than to take the time to understand how the components of a problem fit together. Also, the increasing availability of computer programs allows individuals with less and less knowledge and skill to undertake more and more complex tasks. While the ability to push work “down the line” to lower-paid personnel is great for productivity and profitability, it may put an enEngineers in a developing or TECHNOLOGY AS A SOURCE OF terprise on a collision course LIABILITY with errors and ensuing liabilMany of the new technolo- changing discipline might think they ity. Program errors. Program ergies applicable to engineering rors when an engineer involve the use of computers. can avoid liability by sticking with does occur everything correctly, but Using computers in a profesanswer comes out wrong sional practice introduces risks tried-and-true methods. However, the because of a problem with the associated with computer computer or the program. errors. These errors fall into they cannot. Computer programs can two categories: application have errors in their logic. These errors and program errors. Application errors. Applicaerrors commonly are called tion errors occur when a computer per“bugs.” Examples are multiplying two forms its calculations properly and othernumbers when they should be divided, wise does everything it is supposed to do, using the same name for more than one but produces an incorrect answer. variable, and calling the wrong subrouData-entry errors are a type of applicatine. These errors in logic make computtion error. The user might type an incorers produce incorrect results. rect number or fail to erase a value used Another type of program error is in a previous run. These errors are similar using an improper or incorrect algoto hitting the wrong button on a calcularithm. If the programmer uses the wrong tor. The computer and the computer formula, the computer will produce program contributed little or nothing to wrong answers. the error. Accordingly, it is difficult, if not A third type of program error results impossible, for the engineer to escape from the unexpected interaction of liability for this type of error. application programs or application Using a computer program for a purprograms and memory-resident propose beyond the one the programmer grams. The interaction of two programs originally intended is another type of that use the same part of a computer’s application error. In this type of error, the memory or somehow interfere with each engineer enters the proper data, and the other can produce incorrect results computer solves the equations correctly, without causing the computer to “crash.” but the equations are not the right ones BASIS OF LIABILITY FOR COMPUTERfor the problem at hand. RELATED ERRORS The likelihood of application errors Regardless of whether computerand resulting liability increases when eninduced errors are application errors gineers try to extend a program to a new or program errors, courts are likely to application without fully understanding hold engineers responsible. The basis for how the computer solves such problems. imposing that liability is that the underA wise college professor4 teaching a com34

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lying cause of the problem is not the incorrect output from the computer, but the engineer’s decision to rely on it. An engineer trying to escape liability for improper use or misapplication of a computer or computer program might argue that programming is a separate professional discipline that requires knowledge beyond that of the ordinary engineer. Such an argument, however, is unlikely to prevail, regardless of how complex the program is. In deciding the case of Scott v. Potomac Insurance Co., the Oregon court stated, “It ill behooves a man professing professional skill to say, ‘I know nothing of an article which I am called upon to use in the practice of my profession.’”5 One weakness in the argument that computer programmers should be held responsible for computer-assisted mistakes concerns licensing requirements— engineers are licensed in every state; computer programmers are not; and the

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ostensible purpose of licensing statutes is to protect the public. The case of Duncan v. Missouri Board for Architects, Professional Engineers and Land Surveyors6 illustrates the emphasis courts place on the responsibilities of license holders. That case involved the collapse of a structurally inadequate walkway at the Kansas City Hyatt Regency in 1981. The court held that the structural engineer could not delegate any of his engineering responsibility for the design—even to a fellow licensed engineer. If engineers cannot delegate responsibility to equally qualified, licensed individuals, courts certainly will not allow them to delegate responsibility to non-licensed computer programmers. BUILDING-OFFICIAL LIABILITY

With engineers facing liability for their designs, building officials might wonder about their liability for accepting or rejecting a design. The question has

Supplier Responsibility quipment vendors often distribute software that helps engineers perform calculations or select equipment. This software is susceptible to the same errors that any other program is. It can contain a “bug” that generates erroneous results, or the engineer can misapply the program by trying to use it for a purpose other than the one intended. One popular misapplication of vendor software (at least in the vendor’s eyes) is using one manufacturer’s software to select a competitor’s product. Very often, engineers use vendor software as a general engineering tool. It is not at all unusual for an engineer to use calculation programs prepared by Manufacturer A and specify or approve contractor shop drawings with equipment from Manufacturer B. If a problem occurs, Manufacturer A will disclaim responsibility, even if the problem can be traced directly to some feature of Manufacturer A’s software. At least one modern case helps insulate manufacturers from liability when a competitor’s product is used. The case of The Village of Cross Keys Inc. v. The United States Gypsum Co.1 involved a special type of wall construction that U.S. Gypsum developed to promote the use of its products. The architect used U.S. Gypsum’s design, but did not specify U.S. Gypsum’s products. When water leaks developed, the owners sued the developer who, in turn, sued the architect. The architect and developer also sued U.S. Gypsum, claiming they had relied on USG’s design. In the end, U.S. Gypsum was not liable because the architect did not specify U.S. Gypsum materials, and the contractor did not install U.S. Gypsum products. The U.S. Gypsum case involved written specifications, not computer software. However, there is no reason to believe that courts would view software differently from written specifications. Vendors who provide software can use U.S. Gypsum to disclaim liability to engineers for software errors if a competitor’s product is installed.

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FOOTNOTE 1) 556 A 2d 1126 (Maryland 1989).

been of interest and concern for several years, particularly in the context of rehabilitation, where complying with current codes may be impractical.7 Unlike most of our jurisprudence governing contracts and personal injury (torts), building codes and inspections strictly are creatures of statute. A building official “has only such power and authority as have been clearly conferred or necessarily implied in the legislation creating his office.”8 Understanding an official’s rights and duties requires understanding the statutory framework. Under Massachusetts law, building officials are required to enforce the state building code.9 The statute specifically states that the “state building code shall be the code for all buildings and structures with such city or town.”9 Local officials have no power to impose requirements beyond the code. In fact, the goal of the uniform state building code is the uniform enforcement of statewide standards.10 Seventeen states have uniform building codes that prohibit local amendment without state approval. 11 Unless the underlying statutes give them the power, inspectors who attempt to “enhance” the code could find themselves defendants in a lawsuit seeking a court order or even monetary damages against them personally. Because codes establish minimum standards and are not design documents, imposing requirements that go beyond a code amounts to design. Unless the code official is a licensed design professional, “enhancing” a code could be construed as unauthorized practice of engineering. Fortunately or unfortunately, most of the recent unauthorizedpractice actions essentially have been turf battles between architects and engineers. However, that experience does not mean a creative aggrieved party would not or could not prosecute an unauthorizedpractice action against a code official. Moreover, if a code official—licensed or not—contributes to the design of a project, he acts outside the scope of his employment. The official potentially incurs personal liability for design errors and omissions that cause damage or injury.12 An official who acts in a design capacity will be held to the standard of care of a design professional regardless

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of whether he is a licensed architect or engineer.

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ment only for claims where the government has consented to be sued. For example, the Federal Tort Claims Act LIABILITY FOR FAILURE TO ENFORCE contains an exception that protects the CODES federal government and its employees The official’s primary duty is to Claims against government officials. from liability for claims “based upon an enforce or otherwise administer the code. Years ago, governments and their act or omission of an employee of the The question then is whether officials employees were protected from liability government exercising due care in the face liability for failure to enforce the under a concept known as sovereign execution of a statute or regulation, immunity. Back when kings ruled the whether or not such statute or regulation code strictly. The code itself may have a provision world, most people believed the king be valid, or based upon the exercise or that allows the official to waive, vary, or could do no wrong. Even those who performance, or the failure to exercise or modify parts of the code when “there are thought the king might be fallible at least perform, a discretionary function or duty practical difficulties involved in carrying thought it would be an affront to sue on the part of a federal agency or an out structural or mechanical provisions the king in his own court. Accordingly, employee of the government.”19 The discretionary-function exception ... provided that the spirit and intent of ordinary people had no recourse against applies to activities that require the law is observed and that the the exercise of judgment and public health, safety, and welCourts seem to look to the discretion. The protection fare is assured.”13 Courts have supported the extends to those functions that official’s right to make such availability of the technology and involve planning or implemodifications and waivers. For menting and executing governexample, strict code enforce- whether its application would have mental policy. The appropriment was not required where ateness of that type of dividing weather conditions made strict line has been widely recogavoided the injury, regardless of enforcement inadvisable, and nized.20 Courts have held that activities are immune other circumstances made whether the technology is widely these from suit to protect them waiving strict compliance “from a form of review which advisable.14 adopted. In Rhode Island, a statute15 might impede governmental relieves building officials of operations by subjecting govpersonal liability for “any damernmental decision-making to ages that may accrue to persons or prop- the government for harm that the king or after-the-fact judicial tort analysis.”20 Tort claims acts “simply removed the erty as a result of any act required or the government might have caused. permitted in the discharge of his or her When modern governments and defense of immunity in certain tort acofficial duties.” This provision insulates judicial systems came into being, they tions against (the government). It did not the building inspector from personal liked the idea of being protected from create any new theory of liability.”21 As in liability for waiving strict code compli- suits by members of the public. In 1948, any other tort action, to recover against a ance in appropriate circumstances. The Congress decided that exempting the governmental entity, the plaintiff must statute limits the protection to “the law- government from all suits was unfair and show an act or omission that violates a ful discharge of his or her duties” for enacted the Federal Tort Claims Act,16 duty and causes the plaintiff injury.21 The public-duty doctrine. Like the disofficials who act “in good faith and which makes federal employees liable for without malice and within the scope of negligent acts within the scope of their cretionary-function exception, the pubtheir employment.” The protection, employment “in the same manner and to lic-duty doctrine outlines an area where therefore, does not extend to activities the same extent as a private individual citizens might like to sue the government, but the government has not conoutside the scope of official duties, such under like circumstances.”17 The federal act opened the courthouse sented to be sued. Under the public-duty as attempting to enforce provisions that door to suits against the federal govern- doctrine, public officials owe their duty go beyond code requirements. ment. State and local governments to the public at large, not to specific indiLIABILITY TO THIRD PARTIES retained their sovereign immunity. Even- viduals. Some states have incorporated Building officials’ decisions obviously tually, states enacted their own legislation the public-duty doctrine into their tort affect owners, designers, and contractors. allowing citizens to sue state and local claims acts.18 In other states, courts have rejected the public-duty doctrine.22 They also can affect people not directly governments.18 The discretionary-function exception. In states that adhere to the public-duty related to the project. For instance, the inspector’s decision to grant or deny a While tort claims acts opened up court- doctrine, plaintiffs must show that the building permit can affect neighbors who house doors to suits by citizens against government official owed the plaintiff a might be concerned about traffic or the government, they did not open the “special duty” different from that owed sunlight and shadows. The official’s deci- doors wide. Citizens can sue the govern- to the public at large. 36

sion that certain construction complies with the code can affect someone who later is injured as a result of an alleged defect in the structure. Do these people have any rights against the official?

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Application to building officials. Although courts generally are reluctant to hold municipalities and building officials liable to individual members of the public, they have made exceptions. These cases involved both the discretionary-function exception and the public-duty doctrine. The discretionary-function exception does not apply—and municipalities are liable—when the activity is “prescribed by statute, regulation, or established agency practice.”23 To be protected by the discretionary-function exception, the employee or department apparently must have discretion in determining what actions to take, not just how to implement those actions. Following that reasoning, the discretionaryfunction exception did not protect a city fire department in a case where the plaintiff claimed the fire department was negligent in the way it divided the available water supply between hose streams and automatic sprinklers in a building.23 The discretionary-function exception seems to apply only to broad policy-making decisions, not individual actions. Unlike the discretionaryfunction exception, the public-duty doctrine has afforded more protection to municipalities and building officials. The following cases illustrate situations where the official was not liable because the plaintiffs failed to show the required special duty despite fairly substantial damages: • In Dinsky v. Framingham,24 home buyers suffered water damage as a result of alleged negligence by a building inspector in issuing building and occupancy permits. The lot was not properly graded in spite of a letter from the health department to the building inspector outlining a requirement for grading to control runoff. • In Ribeiro v. Granby, a building inspector failed to require a code-mandated second means of egress from a second-story apartment. Although negligent, the inspector was not liable, even when a fire occurred in the second-story apartment and death resulted, allegedly due to the lack of a second means of egress.25 • In Zocchi v. Town of Hinsdale,26 a building inspector issued a permit and gave the owners verbal approval to begin construction of a home. The conservation commission forced the owners to abandon the project because of wetlands. A town bylaw required the building-permit application to indicate compliance with the Wetlands Act before the inspector could issue a building permit. The plaintiffs argued that they relied on the inspector’s approval and that their reliance was foreseeable. They further argued that their reliance on the building inspector’s apHPAC Engineering • May 2001

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proval created a special duty. The court disagreed, noting that the plaintiffs were in a position to protect themselves from the threatened harm by diligent investigation. The court also noted that the local bylaw placed the initial burden of determining compliance with the Wetlands Act on the building-permit applicant. Therefore, the inspector was not liable.27 • In Pinecrest Village Inc. v. MacMillan,28 the local fire chief and building inspector were sued when the fire chief ordered a developer to install a firesprinkler system after the building inspector issued a permit for the project without sprinklers. The building inspector relied on the building code, while the fire chief relied on a statute that was more restrictive than the building code. The scope statement in the building code deferred to statutes, so the inspector should have referred to and applied the statute. Despite this mistake, however, claims against the building inspector were barred because the inspector acted within the scope of his authority and owed the plaintiff no special duty different from the duty owed to the public at large. • In Hoffert v. Owatonna Inn Towne Motel Inc.,29 plaintiffs sued the city for personal injuries and death in a motel fire after the city issued a building permit that authorized a remodeling project that violated the building code. The plaintiffs lost because they could not show a special duty. • In Modlin v. Miami Beach,30 the plaintiff argued that the building inspector was negligent in inspecting a building that collapsed. The court found no special duty and, therefore, no liability, even though the collapse caused personal injury. Courts that have upheld the public-duty doctrine nevertheless have found situations where codes created a duty to individuals: • In Halvorson v. Dahl, 31 a widow sued the city after her husband died in a hotel fire. While most codes identify upholding public safety and promoting general welfare as their 38

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purpose, the housing code in this case identified its purpose as protecting the occupants of regulated buildings. As a guest in the hotel, the husband was a member of the protected class, overcoming the public-duty doctrine. The court went on to point out that abstract code violations are not enough to impose liability. The plaintiff widow prevailed because she showed “culpable neglect or indifference to the code.”31 She convinced the court that the city had been aware of code violations for six years and undertook to force compliance several times, but never followed through. • In Hicks v. Cardoza,32 a Massachusetts court found an exception to the

Courts have held that an engineer’s duty to meet the standard of care cannot be delegated, even to another engineer.

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public-duty rule, applying reasoning similar to that in the Halvorson case under Massachusetts’ Lead Poisoning Prevention and Control Act. The court found that the act was intended to protect young children and created a special duty to them, making the city liable for negligence by a lead-paint inspector. • In Rogers v. City of Toppenish,33 property buyers recovered against the city after they relied on the building inspector’s advice that they would be allowed to build an apartment house. In fact, the property was zoned for single-family dwellings only. The plaintiffs recovered because the city’s zoning maps were not kept up to date, meaning that the building inspector was the only source of the latest zoning information. The plaintiffs, therefore, could not have searched public records for the information they needed; instead, they had to rely on the building inspector. The court supported its conclusion by referring to §552(3) of the Restatement (Second) of Torts (1977). That section makes someone under a public duty to give information liable if a member of the class intended to benefit from the duty relies on the information and suffers a loss. Some states reject the publicduty rule altogether and hold officials liable in negligence as they would any other person: • In Coffey v. Milwaukee,34 a tenant in an office building suffered a loss in a fire. He sued the building inspector and the city, claiming that his loss was due to defective standpipes that had not been properly inspected. The court noted that the duty to inspect was imposed by statute and was not discretionary. The court also noted that enforcement actions against violators might have a quasi-judicial character, providing some immunity, but that identifying violations was not judicial in nature. The court found that a building inspector must be held to foresee that negligent inspection could result in harm. The court went on to say that, “Any duty to the public

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generally is a duty owed to individual members of the public,”35 effectively abandoning the public-duty doctrine. The court ordered a trial so a jury could decide whether there was actual negligence, the extent of the damages, and whether the negligence, if proven, actually caused the damage. • In Stewart v. Schmieder,36 a building inspector’s failure to carry out his duties by failing to review plans left the city liable to people injured when a building collapsed. There was evidence that the city inspectors routinely relied on representations by design engineers that structural designs were adequate, even though the code required the inspector to conduct an independent review. The court cited other exceptions to the public-duty doctrine and allowed a jury verdict against the city to stand. Even states that adhere to the public-duty rule sometimes find that a plaintiff has overcome it: • In Quality Court Condominium Assoc. v. Quality Hill Development Corp.,37 a Rhode Island court found a special duty in a case where the inspector had been particularly lax about reviewing plans and addressing problems that the plaintiffs had brought to his attention. The court found a special duty because the building inspector had specific knowledge of the problems and knew the identity of the potential victims. • In Resmini v. Kilduff Builders,38 homeowners sued the builder and the town after their septic system failed. The homeowners argued that the town became an agent for the builder and, therefore, was liable when a clerk in the building inspector’s office signed the builder’s name on a permit application. The court reviewed the facts and declined to hold the town liable. Unlike the Quality Court case, in Resmini v. Kilduff, there was no evidence that the building inspector had done anything wrong or even knew or should have known of any wrongdoing. Therefore, the town owed no special duty and had no liability. • In Lawrence v. City of Cambridge,39 a Massachusetts court used reasoning similar to that in the Quality Court case to hold a police department liable. The Massachusetts court found that a special duty to an individual might attach under the Massachusetts Tort Claims Act. 40 The special duty arose because the police had given specific assurances that they would escort a late-night store clerk to the bank. In addition, the police had provided the escort on several occasions. On a night that the police escort failed to show up, the plaintiff was attacked. It is not hard to imagine how a court could extend that reasoning to a situation where a building inspector gives specific assurances to an owner about the adequacy of a design or the quality of materials and workmanship. Of course, if the plaintiff cannot show that the official’s alleged negligence caused the damage, there will be no liability regardless of any special duty. In Troyer v. Webster Homes Inc.,41 the municipality was not liable because the plaintiff failed to show that design changes that the city inspector allegedly required either were implemented or were the cause of the failure. Depending on the state and the facts of the case, the publicduty doctrine might or might not protect a code official. Even courts that follow the public-duty doctrine have found liability where the plaintiff showed a special duty. In deciding whether there was a special duty, courts consider the class of people the statute or code was intended to protect. They also consider how HPAC Engineering • May 2001

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specific the official’s involvement with the particular plaintiff or project was.

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users, and enforcers need to accept them and learn how to use them. The second-biggest impediment to perNOVEL CONCEPTS, EQUIVALENCY, AND formance codes may be poorly drafted PERFORMANCE-BASED CODES criteria that leave designers and Most codes contain some type of enforcers wondering how to comply. equivalency statement. These provisions To be useful, performance-based codes allow “alternative material(s) or should include at least one prescriptive method(s) of construction ... when the alternative that illustrates one way code official finds that the proposed of meeting the code. Designers and design is satisfactory and complies with enforcers can use the prescriptive alterthe intent of the provisions of th(e) code native as an indication of what the and that the material, method, or work code intends. Enforcers then can see offered is, for the purpose intended, at for themselves how the proposed sysleast the equivalent of that prescribed in tem compares to traditional methods. th(e) code in quality, strength, effectiveThe greater the differences, the more ness, fire resistance, duraexplanation the enforcer might bility, and safety.”42 require. When an official does not Equivalency statements In fairness, then, how can offiare desirable and even cials, who are not designers, fairly necessary. Without them, understand an application or does and reasonably evaluate complex there would be little or no alternatives without being “arbiopportunity to test and not know how to determine whether trary, whimsical, or capricious?” evaluate novel concepts The logical answer seems to be to and new methods of it complies with the code, the action throw the problem back on the construction. In addition, designers. Officials are not technology progresses responsible for designing projshould be to ask questions, not faster than codes are ects. They are responsible for developed, amended, and determining whether the submitreject the application. adopted. As a result, codes ted design complies with the cannot cover all situations. code. Therefore, in cases that Some projects could not be involve novel concepts or alternabuilt as designed and comply with the equivalency provisions in building codes. tive designs, the first step should be to The next question becomes whether ask the designer to explain how the code without equivalency statements. As more and more codes become perform- the official is required to evaluate and proposed design complies. The deance-based, equivalency will become the accept alternatives. If the code states signer is responsible for documenting that equivalents “shall be approved” or the basis of design. The official is rerule rather than the exception. Unlike conventional prescriptive that “nothing in this code is intended sponsible for requiring and undercodes that spell out specific materials and to prevent” alternatives, the code offi- standing the documentation. techniques, performance-based codes cial is obligated to evaluate the alternaAuthors have suggested that permit specify results. For example, rather than tive. A code official is “under a ‘duty to applicants need to open up lines of specify that a room be enclosed with 2-hr act in a fair, judicial, and reasonable communication with the official early partitions, a performance-based code manner upon the evidence ... pre- in the design process.11 Communicamight require sufficient fire-detection, sented ... keeping in mind the objects tion is a two-way street. When an offisuppression, and notification systems to of the bylaw.’ He cannot with propri- cial does not understand an application allow all occupants to exit safely and to ety ‘act in an unreasonable, arbitrary, or does not know how to determine prevent the spread of fire beyond the whimsical, or capricious manner.’”44 whether it complies with the code, the room of origin. Since no one knows Failure to satisfy this requirement action should be to ask questions, not whether the prescriptive 2-hr partitions could lead to a court action ordering reject the application. A blanket rejecactually provide that level of perform- the official to evaluate and approve the tion is tantamount to a request to be ance, the performance-based alternative proposed alternative. If the proponent taken up on appeal. design might enhance overall safety. can show particular malice or bad Performance-based codes and tradeoffs faith, the official might have personal CONCLUSION Courts have imposed a duty on profesare not new. Most current energy codes liability as well. The biggest impediment to per- sionals to use current technology in the include a performance-based alternative that allows computerized models to show formance-based codes probably is atti- practice of their professions. That duty is that the proposed design will use less tude. Performance-based codes are the accompanied by the obligation to underenergy than the same building built to way of the future, so code writers, stand the technology and apply it prop40

the prescriptive requirements in the code. Not surprisingly, performance-based alternatives can give rise to litigation. The case of Krupp v. Building Commissioner of Newton43 addressed a challenge by neighbors of three proposed steel-frame houses. The building inspector had accepted the design as adequate, even though the steel to be used in the houses was not as thick as specified in city ordinances. The plaintiffs, who undoubtedly opposed the project for other reasons, claimed that permitting the alternative design undermined the ordinance and should not be allowed. The court disagreed, in effect legitimizing

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erly. Because engineering is a non-delegable duty, engineers cannot blame computer programmers for errors that result from designs based on computer models. Building officials are responsible for enforcing codes, not creating them. In most states, officials who attempt to force designers to go beyond what the code requires act outside the scope of their employment and forfeit any governmental immunity they might otherwise have had. In addition, because these officials would be acting in a design capacity, they would be held to the designer’s standard of knowledge and judgment, regardless of whether they have the requisite training. Generally speaking, building officials have a duty to enforce codes for the benefit of the public at large. To recover against an official, individuals must show that the official was arbitrary and capricious or had a special duty to that individual. The duty to enforce the code includes a duty to evaluate equivalent designs, especially for unique projects that do not fit within traditional code criteria. Since many officials do not have the engineering background to evaluate proposed performancebased designs, their first action should be to ask the designer to demonstrate how the proposed design is equivalent to the prescriptive-code requirement. In some complex situations, an official might have to hire a consultant to advise on equivalency. FOOTNOTES

1) Although plaintiffs also may have claims for breach of contract, they typically sue for negligence because insurance usually does not cover breach of contract, and most engineering firms do not have a lot of capital. 2) 60 F. 2d 737 (2nd Cir. 1932). 3) Helling v. Carey, 83 Wash. 2d 514, 519 P 2d 981 (1974). 4) Walter Hahn, professor of metallurgy and materials science (now deceased), Lehigh University. 5) 341 P2d 1083 at 1088 (Oregon 1959). This sentence also appears as a quotation in Mayor, etc. v. Clark Dietz at 624, where it is attributed to St. Joseph Hospital v. Corbetta Construction Co. Inc., 21 Ill App 3d 925, 316 NE 2d 51 at 55 (1974). 6) 744 SW 2d 524, (Mo. App. 1988). 7) See U.S. Dept. of Housing and Urban Development Guideline for Managing Official Liability Associated with Building Rehabilitation, Publication HUD-PDR-613-4(2), November 1986. 8) Dupuis v. Zoning Board of Appeals of Town of Groton, 152 Conn. 308, 206 A2d 422 at 423 citing Allyn v. Hull, 140 Conn 222 at 226, 99 A2d 128. 9) Massachusetts General Laws (MGL) c. 143 §3A. 10) MGL c. 143 §95 and Fire Chief of Cambridge v. State Building Code Appeals Board, 34 MassApp 381, 611 NE2d 736 (1993), review denied 415 Mass 1105, 616 NE2d 469, 21 M.L.W. 2986 (1993). 11) Fisette, P. “Decoding Building Codes.” www.umass.edu/bmatwt/codes.html. 12) See Troyer v. Webster Homes Inc., 566 S2d 114 (LaApp 5th Cir. 1990), cert. denied 571 So2d 650, 651, for a case in which an inspector allegedly required changes of his own design on a project. Since the plaintiff failed to show that the inspector’s design changes either were implemented or were the cause of failure, the court did not reach the issue of the inspector’s potential liability for faulty design. HPAC Engineering • May 2001

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13) The BOCA National Building Code/1993, Section 106.2. 14) Sengstacken v. McAlevey, 333 NYS2d 834, 39 AD 965. 15) RI General Laws §23-27.3-107.9. 16) 28 USC, Part VI, Chapter 171, §§ 2671-2680. 17) 28 USC §2674. 18) Some examples are: • California: Cal. Code Title 1, §§815-822.2. • Illinois: Ill. Ann. Stat. c. 85 §§2103-6-109. • Massachusetts: Mass. General Laws Chapter 258 (enacted in 1978 and substantially revised in 1993). The original statute was a response to the Supreme Judicial Court’s announcement in Whitney v. City of Worcester, 373 Mass 208, 366 NE2d 1210 (1977), that it would abandon the doctrine of municipal immunity if the legislature did not enact a suitable statute. The amendments were a response to a similar threat announced in Jean W. v. Commonwealth, 414 Mass 496, 610 NE2d 305 (1993). • New Jersey: NJ Stat. Ann. Title 59, §§2-3-2-10. 19) 28 USC §2680(a). 20) Whitney v. City of Worcester, 373 Mass. 208 at 217, 366 NE2d 1210 (1977). 21) Dinsky v. Framingham, 386 Mass 801, 438 NE2d 51 at 53 (1962). 22) Adams v. State, 555 P2d 235 (Alaska 1976). Coffee v. Milwaukee, 74 Wis2d 526, 247 NW2d 132 (Wisconsin 1976). Coffee v. Milwaukee reserved the right to impose the publicduty doctrine in six situations. 23) Harry Stoller & Co. v. Lowell, 412 Mass 139 at 141, 587 NE2d 780 (1992). 24) 386 Mass 801, 438 NE2d 51 (1982). 25) 395 Mass 608, 481 NE2d 466 (1985). 26) 30 MassApp 803, 573 NE2d 1017 (1991). 27) See Rogers v. City of Toppenish (Page 38) for a contrary view. 28) 24 Mass. Lawyers Weekly 1879, Middlesex Superior Court Civil Action No. 93-6095-A (May 20, 1996), affirmed 424 Mass. 70 (1997). 29) 293 Minn. 220, 199 NW2d 158 (1972). 30) 201 So2d 70 (Fla. 1967). 31) 89 Wash2d 673 at 676, 574 P2d 1190 (1978). 32) Suffolk County, MA, Housing Court Civil Action No. 18900. 33) 23 WashApp 554, 596 P2d 1096 (1979). 34) 74 Wis2d 526, 247 NW2d 132 (1976). 35) Ibid. at 139. The court reserved the right to apply the public-duty doctrine in six situations. 36) 386 So2d 1351 (La 1980). 37) 641 A2d 746 (RI 1994). 38) 661 A2d 964 (RI 1995). 39) 422 Mass 406, 664 NE2d 1 (1996). 40) MGL c. 258 §10(j)(1). The statute makes the municipality liable for “any claim based upon explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken, made to the direct victim.” 41) 566 S2d 114 (LaApp 5th Cir. 1990), cert. denied 571 So2d 650, 651. 42) The BOCA National Building Code/1993, Section 106.4. 43) 325 Mass 686, 92 NE2d 242 (1950). 44) Castelli v. Board of Selectmen of Seekonk, 15 MassApp 711 at 714, 448 NE2d 768 (1983). 42

May 2001 • HPAC Engineering