JanFeb 2009: Minimizing Masonry Litigation – Part 7: 
No Grandfathering

JanuaryFebruary 2009

Existing structures that can injure or kill 
usually are not grandfathered to any previous code.

by Norm Cooper, P.E.

Norm Cooper, P.E.
Norm Cooper, P.E., has served the justice system as a forensic engineer in more than 700 cases. He is included in Who’s Who in American Law and national and international editions of Who’s Who in Engineering. Cooper’s web address is www.realtyengineering.
Next Edition
Upcoming articles will include case studies of disputes and lawsuits involving other masonry issues.

Owner required to keep safety to current building code

Done properly, masonry structures can be safe, as well as attractive and economical choices. But some owners (as well as some designers and builders) may not be aware that they usually are obligated to keep existing structures to current code.

The International Building Code (IBC*) requires owners of existing structures to comply with current code, or to remove anything involving safety that does not comply. While the IBC is now adopted into law in at least part of all 50 states, state or local amendments must be consulted on this (or any other issue). Failure to bring safety elements of existing structures to current code is a primary cause of many injuries, deaths and lawsuits. Existing structures that can injure or kill, therefore, usually are not grandfathered to any previous code.

The author’s expert witness case example pictured here, as well as some cases in previous columns (on stairs, ramps, basements, free standing and retaining walls), include structures that did not violate code when built but did violate code on date of sale, or on date of injury or death. All of these cases were resolved based on the following no grandfathering requirements:

A. Purpose
The code (IBC* 101.3) states: The purpose of this code is to establish the minimum requirements to safeguard the public health, safety and general welfare through structural strength, means of egress facilities, stability, sanitation, adequate light and ventilation, energy conservation, and safety to life and property from fire and other hazards attributed to the built environment and to provide safety to fire fighters and emergency responders during emergency operations.

The plain language of the cited code defines what is unsafe for new and for existing residential or other construction, regardless of previous codes, opinions, general versus specific code statements, or grandfathering statements elsewhere in the cited code. Therefore, the current code defines what is unsafe in all new and existing residential and other construction. However, the cited purpose does not require action. The unsafe structures section cited below does require action.

B. Unsafe Structures 
The code (IBC* 115.1) requires: Structures or existing equipment that are or hereafter become unsafe, insanitary [sic] or deficient because of inadequate means of egress facilities, inadequate light and ventilation, or which constitute a fire hazard, or are otherwise dangerous to human life or the public welfare, or that involve illegal or improper occupancy or inadequate maintenance, shall be deemed an unsafe condition. Unsafe structures shall be taken down and removed or made safe, as the building official deems necessary and as provided for in this section. A vacant structure that is not secured against entry shall be deemed unsafe.

The code (IBC* 202) defines structure as: “That which is built or constructed.” There is no unsafe structures paragraph in the International Residential Code.

The plain language of the cited unsafe requirement is that unsafe construction (other than one- and two-family residences) must be made safe or removed. As cited above, unsafe is defined by current code, not by any grandfathering code wording, not by opinion of an engineer, building official, or anyone else.

The 2000 IBC Commentary states: “Unsafe structures are defined as buildings or structures that are … deficient in … adequate exit facilities … or are otherwise dangerous to human life. … For example, prima facie evidence of an unsafe structure is an unsecured (open at door or window) vacant building. All unsafe buildings must either be demolished or made safe and secure as deemed appropriate by the building official.” Although the building official can decide whether the violating structures must be demolished or made safe, the current code – not the building official – determines what is unsafe.

Therefore, to prevent injury, death and lawsuits (regardless of any grandfathering language or opinions), the plain language cited requires that unsafe construction must be abated to current code for all except one- and two-family dwellings.

C. Most Restrictive Governs
The code (IBC* 102.1) requires: “Where, in any specific case, different sections of this code specify different materials, methods of construction or other requirements, the most restrictive shall govern.” Because as cited, the most restrictive code governs, unsafe is defined by current code, not by any grandfathering or general versus specific code statements, and not by opinion of an engineer, building official, or anyone else.

Minimizing Masonry Litigation No Grandfathering

A fall and severe injury was caused by violations of the building code in effect on injury date. These violations included stair landings, stair riser/tread dimensions and differences, handrail dimensions and strength, and missing guardrail. THe fact that there was no adopted building code at construction date was not grandfathered.

D. Owner Responsible
The code (IBC* 3401.2) requires: “Buildings and structures, and parts thereof, shall be maintained in a safe and sanitary condition. … The owner or the owner’s designated agent shall be responsible for the maintenance of buildings and structures.”

The plain language of this requirement, in light of the above requirements, puts the responsibility and liability for keeping safety to current code on “The owner or the owner’s designated agent,” regardless of action or lack of action by the building official or others.

E. Building Official
The code (IBC*104) states: The building official shall have the authority to render interpretations of this code and to adopt policies and procedures in order to clarify the application of its provisions. Such interpretations, policies, and procedures shall be in compliance with the intent and purpose of this code. Such policies and procedures shall not have the effect of waiving requirements specifically provided for in this code.

This cited requirement assures that the building official has no authority to waive the above purpose and unsafe building provisions or allow grandfathering to the detriment of safety.

F. Others Responsible
State laws governing the practice of architecture, engineering and other professions usually have as their primary purpose “to safeguard life.” Often by statute, safeguarding life is the most important responsibility of owners, architects, engineers, contractors and others owning, designing, or constructing masonry (or other) structures. Grandfathering unsafe construction so it can potentially or actually continue to kill or injure is not only contrary to the building code as cited above, but is contrary to the safety obligation of owners, designers and builders.

*IBC: International Building Code, 2006 and earlier editions, by International Code Council.