Legal Ease

Buildings—and roof systems—are to be designed, constructed and maintained according to building codes, which are intended to protect public safety, health and welfare. Except for contractors working in a few select areas, such as Dade County, Fla., and Miami, building codes historically have not been a major concern of roofing contractors.

In recent years, however, building codes increasingly are becoming a source of liability for roofing contractors. In particular, whether roof system construction meets applicable code requirements for wind uplift has become more problematic. Jobs in coastal areas, job sites that are condominiums, and projects where a roofing contractor contracts directly with a building owner and no design professional has been retained pose greater liability risks to roofing contractors. But even the involvement of an owner-retained architect or engineer does not necessarily shield a contractor from potential liability for code violations. Language in contract documents is critical for roofing contractors.

The issue

Under typical circumstances, an architect or other design professional most likely will be found liable if plans and specifications do not comply with applicable building codes.

In numerous states, failure by an architect to design according to a building code constitutes negligence per se, meaning the design's nonconformance with the building code will establish the architect was negligent without any further proof. Proof of violating a building code in the design of a building constitutes, at the very least, evidence of the architect's negligence. Even if the failure to comply with a code was made by a structural engineer or other consultant who was retained by the architect, the architect will be held vicariously liable on the grounds that the code imposed a duty to delegate compliance with the code to others.

The principle that a design professional is responsible for a design that complies with the building code is incorporated into The American Institute of Architects (AIA) standard contract documents. The 1997 edition of the AIA standard form of agreement between owner and architect, AIA Document B141-1997, includes a specific provision (Article 1.2.3.6) concerning the architect's duty to check and incorporate applicable codes into the design as part of the architect's professional services.

AIA standard contract documents provide that a contractor is not liable for unknown code violations. Only if a contractor knows the plans and specifications contain a code violation, chooses not to inform the owner or architect of the code violation, and knowingly proceeds to perform the work will the contractor be liable, according to AIA standard contract documents.

Although AIA standard contract documents state a contractor is required to give notices that may be required by laws, ordinances, rules and regulations applicable to performance of the work, AIA General Conditions explicitly state it is not a contractor's responsibility to ascertain whether plans and specifications comply with applicable building codes. But if a contractor proceeds to perform work knowing it violates a building code, he will be responsible for the costs of correcting it. If the contractor is aware of a code violation, the contractor is to promptly notify the architect and owner and a change order is to be issued.

Some architects will try to shift liability for code compliance to a contractor by including language in specifications stating the work is to be constructed according to all applicable codes, ordinances and regulations though the specification issued by the architect may be nonconforming. Another liability-shifting device is for a building owner or design professional to prepare a bare-bones specification and assert the prescribed specification is a "performance" specification that is to be developed by the contractor who then will assume liability to design a code-compliant roof system.

If a contractor follows plans and specifications issued by an architect or roof consultant, will the contractor be liable if the completed roof system violates building codes? This depends primarily on the contract language and applicable state law.

Many general contractor-drafted subcontract forms contain specific provisions requiring a subcontractor to perform work according to all applicable ordinances, codes, rules and regulations. Before signing a contract with these types of provisions, a roofing contractor should add a clause stating "provided the plans and specifications the subcontractor is to follow are in compliance therewith."

A straightforward provision stating the roofing contractor is not responsible for ensuring the prescribed design complies with the code should insulate him from liability as long as he complies with the prescribed design and is not aware of its noncompliance. If he knows the prescribed design and work violate building codes, he likely will be found at least partially negligent.

Examples

In the 1974 case St. Joseph Hospital v. Corbetta Construction Co. Inc., the Appellate Court of Illinois faced a situation where a change order called for the contractor to install Textolite wall paneling. The contract also stated the contractor had to comply with the building code. The contractor did not know Textolite wall paneling did not comply with the building code.

Although not known at the time by the owner, architect or contractor, Textolite had a flame spread about 17 times the maximum flame spread allowed by Chicago's building code. After Textolite was installed, the code deficiency was discovered. The material was removed, and a different product was installed. The owner sued all the parties for breach of contract and negligence to recover the costs of removing and replacing the Textolite.

The contract between the hospital and contractor included a provision requiring the contractor to comply with all ordinances and codes and be responsible for all damages caused by violation of any such codes. The contractor also was required to guarantee work against all defects in materials and workmanship for two years. In addition, he was to hold harmless the owner and architect from and against any and all losses and damages arising out of or in connection with any and all acts or omissions of the general contractor and subcontractors.

Despite these provisions, the Appellate Court of Illinois ruled the contractor was not liable for the code violation. Following the Spearin doctrine, the court ruled the contractor was not liable for installing the precise material specified in the change order signed by the architect and owner. (For more information about the Spearin doctrine, see "Spotlight on Spearin," June 2003 issue, page 16.)

Having completed the construction according to plans and specifications, the contractor was not liable for loss or damage when the plans or specifications provided to the contractor were found to be defective or insufficient in the absence of negligence on the contractor's part.

The Appellate Court of Illinois refused to construe the contract to make the contractor liable. The court pointed out that all parties, including the owner, were legally subject to building codes. It would be unfair to make the contractor liable to the hospital or architect for installing the material the contractor had been ordered to install.

Although a contractor might not be liable for a building code violation inherent in plans prepared by an architect or engineer, if a contract requires the contractor to ascertain plans and specifications conform with building codes, he may well be liable for a breach of contract and resulting damages if he proceeds to construct a building according to nonconforming plans.

In the 1974 case Roban Construction Inc. v. Housing Authority of the City of Hazelton, the contract specifically required the contractor to examine the drawings and specifications for compliance with applicable codes and report any discrepancy. A change order then would be issued. Based on the provision, the court ruled the contractor was on notice that the plans and specifications might not comply with applicable codes and had the responsibility to ascertain whether the plans and specifications complied.

In reroofing situations where an owner has not retained a design professional, a roofing contractor has a greater likelihood of being held liable for a building code violation and should be more sensitive and vigilant to avoid that liability. The Spearin defense applied by the Appellate Court of Illinois in the Corbetta Construction case is not available to a roofing contractor who was not following plans and specifications issued by an owner or an owner's representative.

With regard to potential design and building code liability, courts are likely to distinguish between when a contractor is following plans and specifications issued by the owner, architect or consultant versus when a roofing contractor submits a reroofing specification, incorporates that specification in his proposal and contracts to install a roof system.

Unless a roofing contractor has a design professional on staff and intends to provide professional design services, he may want to include a specific provision in proposals and contracts stating he is not responsible for determining building code compliance. He also might include a sentence stating he is not an architect or engineer and suggest the owner retain a design professional. If the owner chooses to avoid the expense of hiring a design professional, the risks and consequences of not retaining a design professional who has responsibility for preparing code-compliant design documents should rest with the owner.

In cases where a contractor has included exculpatory language and the code violation was not caused by a construction defect by the contractor, the contractor should not be liable.

For example, in the 2002 case Associated Builders Inc. v. Oczkowski, the Supreme Judicial Court of Maine ruled the contractor was not liable for the additional expenses necessary to make the building code-compliant because of a note the contractor included in his proposal. The owner was converting a restaurant to a motel in Bar Harbor, Maine. The owner presented the contractor with drawings of the construction the owner wanted. The contractor prepared a written document, which the owner never signed, stating the contractor would complete the work on a time-and-material basis for an estimated cost of $55,000 to $60,000. The document also contained a note stating the contractor was not responsible for the engineering of the second floor and would assume no liability.

During construction, the Bar Harbor code enforcement officer expressed concern regarding whether the proposed construction plans would comply with building codes. The owner hired an engineer who prepared modifications to the plans that increased the cost of construction. Relying on the "proposal" given by the contractor, the owner declined to pay the contractor's final invoice.

The owner contended every construction contract contains an implied warranty that the building will comply with all applicable codes. The Supreme Judicial Court of Maine rejected the owner's argument based on the Spearin doctrine and pointed out the contractor explicitly had disclaimed liability for problems associated with the engineering of the second-floor structures, negating any implied warranty.

In the 1998 case decision Tips v. Hartland Developers Inc., the Texas Court of Appeals in San Antonio ruled there was an implied warranty in construction contracts that the contractor would comply with relevant municipal codes so the building was suitable for its intended purpose. However, this implied warranty could be negated or modified by the parties. Indeed, in this case, the court concluded the contractor was not liable for additional costs to comply with the fire code because the owner knew fire protection had not been included in the contractor's bid. It is noteworthy that no architect was retained and the contractor was required to prepare the drawings and plans.

Diligence pays off

The Hartland Developers case underscores the need for roofing contractors to be certain roof system construction complies with applicable codes or disclaim responsibility for code compliance. Because building codes have the force of statutes and are considered minimum standards to protect the public interest, professional roofing contractors need to ensure they do not unwittingly become liable for code violations and that the specifications conform to applicable building codes.

Stephen M. Phillips is a partner with the Atlanta-based law firm Hendrick, Phillips, Salzman & Flatt.