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

E venture involves risks. One of those risks is requires professionals to have the specialized knowl-
the possibility of dis- edge 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 re- them to use judgment in apply-
Foxboro, Mass.
solve their disputes privately. ing that knowledge and skill.
When they are unable to do so, • Prove damages and demon-
they typically resort to court action. strate that the defendant’s breach of
This article presents the funda- duty was the proximate cause of
mentals of professional liability for the damage sustained.
engineers, identifies the circum- A legal action is like a chain.
stances under which building To win a case, the plaintiff must
officials can be liable for their deci- prove 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:
• Prove that the defendant owes REQUIREMENT TO USE CURRENT
the plaintiff a duty. TECHNOLOGY
• Show that the defendant Engineers in a developing or
breached the duty. For engineers changing discipline might think
and other professionals, a breach they can avoid liability by sticking
occurs if the professional fails to live with tried-and-true methods.
However, they cannot.
Kenneth M. Elovitz, PE, Esq., is an engineering For many years, courts have required profession-
consultant 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
Board, as well as ASHRAE, IEEE, and NFPA. radios were new, and there was no industry

HPAC Engineering • May 2001 33

 L E G A L
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 pa-
tients under the age of 40 for glaucoma.
Courts seem to look to the availability
of the technology and whether its appli-
cation would have avoided the injury,
regardless of whether the technology is
widely adopted.
TECHNOLOGY AS A SOURCE OF
LIABILITY
Many of the new technolo- changing discipline might think they ity.
gies applicable to engineering
involve the use of computers.
Using computers in a profes-
can avoid liability by sticking with does occur
sional practice introduces risks tried-and-true methods. However, the
associated with computer
errors. These errors fall into
two categories: application
errors and program errors.
Application errors. Applica-
tion errors occur when a computer per-
forms its calculations properly and other-
wise does everything it is supposed to do,
but produces an incorrect answer.
Data-entry errors are a type of applica-
tion error. The user might type an incor-
rect number or fail to erase a value used
in a previous run. These errors are similar
to hitting the wrong button on a calcula-
tor. The computer and the computer
program contributed little or nothing to
the error. Accordingly, it is difficult, if not
impossible, for the engineer to escape
liability for this type of error.
Using a computer program for a pur-
pose beyond the one the programmer
originally intended is another type of
application error. In this type of error, the
engineer enters the proper data, and the
computer solves the equations correctly,
but the equations are not the right ones
for the problem at hand.
The likelihood of application errors
and resulting liability increases when en-
gineers try to extend a program to a new
application without fully understanding
how the computer solves such problems.
A wise college professor4 teaching a com-
34 May 2001 • HPAC Engineering
L I A B I L I T I E S
puter-applications course made this
As engineers use computers for more
point to his students. He insisted that
and more tasks, they begin to lose their
they solve the first iteration of a problem
common-sense feel for when results are
themselves using conventional methods
correct. Engineers who used slide rules
before allowing a computer to take over.
had to understand the problem and
Computers perform calculations
figure the answer approximately in their
quickly and tirelessly. Unlike humans,
heads or on scratch paper. With comput-
they do not make errors “crunching
ers, it often is easier to make multiple
numbers.” However, they are pro-
runs than to take the time to understand
grammed by humans using algorithms
how the components of a problem fit
developed by humans. Therefore, they
together. Also, the increasing availability
cannot perform impossible calculations
of computer programs allows individuals
or solve problems that science does not
with less and less knowledge and skill to
understand. Placing too much faith in
undertake more and more complex
computers without understanding the
tasks. While the ability to push work
underlying problem leads to errors.
“down the line” to lower-paid personnel
is great for productivity and
profitability, it may put an en-
Engineers in a developing or terprise on a collision course
with errors and ensuing liabil-
Program errors. Program er-
rors when an engineer
everything correctly, but
answer comes out wrong
because of a problem with the
computer or the program.
they cannot. Computer programs can
have errors in their logic. These
errors commonly are called
“bugs.” Examples are multiplying two
numbers when they should be divided,
using the same name for more than one
variable, and calling the wrong subrou-
tine. These errors in logic make comput-
ers produce incorrect results.
Another type of program error is
using an improper or incorrect algo-
rithm. If the programmer uses the wrong
formula, the computer will produce
wrong answers.
A third type of program error results
from the unexpected interaction of
application programs or application
programs and memory-resident pro-
grams. The interaction of two programs
that use the same part of a computer’s
memory or somehow interfere with each
other can produce incorrect results
without causing the computer to “crash.”
BASIS OF LIABILITY FOR COMPUTER-
RELATED ERRORS
Regardless of whether computer-
induced errors are application errors
or program errors, courts are likely to
hold engineers responsible. The basis for
imposing that liability is that the under-
 L E G A L L I A B I L I T I E S

lying cause of the problem is not the ostensible purpose of licensing statutes is been of interest and concern for several
incorrect output from the computer, but to protect the public. years, particularly in the context of
the engineer’s decision to rely on it. The case of Duncan v. Missouri Board rehabilitation, where complying with
An engineer trying to escape liability for Architects, Professional Engineers and current codes may be impractical.7
for improper use or misapplication Land Surveyors6 illustrates the emphasis Unlike most of our jurisprudence
of a computer or computer program courts place on the responsibilities of governing contracts and personal injury
might argue that programming is a license holders. That case involved the (torts), building codes and inspections
separate professional discipline that collapse of a structurally inadequate strictly are creatures of statute. A building
requires knowledge beyond that of the walkway at the Kansas City Hyatt official “has only such power and author-
ordinary engineer. Such an argument, Regency in 1981. The court held that ity as have been clearly conferred or
however, is unlikely to prevail, regardless the structural engineer could not dele- necessarily implied in the legislation
of how complex the program is. In decid- gate any of his engineering responsibility creating his office.”8 Understanding an
ing the case of Scott v. Potomac Insurance for the design—even to a fellow licensed official’s rights and duties requires under-
Co., the Oregon court stated, “It ill engineer. If engineers cannot delegate standing the statutory framework.
behooves a man professing professional responsibility to equally qualified, Under Massachusetts law, building
skill to say, ‘I know nothing of an article licensed individuals, courts certainly will officials are required to enforce the state
which I am called upon to use in the not allow them to delegate responsibility building code.9 The statute specifically
practice of my profession.’”5 to non-licensed computer programmers. states that the “state building code shall
One weakness in the argument that be the code for all buildings and struc-
computer programmers should be held BUILDING-OFFICIAL LIABILITY tures with such city or town.”9 Local offi-
responsible for computer-assisted mis- With engineers facing liability for cials have no power to impose require-
takes concerns licensing requirements— their designs, building officials might ments beyond the code. In fact, the goal
engineers are licensed in every state; com- wonder about their liability for accepting of the uniform state building code is
puter programmers are not; and the or rejecting a design. The question has the uniform enforcement of statewide
standards.10
Seventeen states have uniform build-
Supplier Responsibility ing codes that prohibit local amendment
without state approval. 11 Unless the
quipment vendors often distribute software that helps engineers perform calcula-
E tions 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
underlying statutes give them the power,
inspectors who attempt to “enhance”
the code could find themselves defen-
engineer can misapply the program by trying to use it for a purpose other than the one dants in a lawsuit seeking a court order or
intended. One popular misapplication of vendor software (at least in the vendor’s eyes) even monetary damages against them
is using one manufacturer’s software to select a competitor’s product. personally.
Very often, engineers use vendor software as a general engineering tool. It is not at Because codes establish minimum
all unusual for an engineer to use calculation programs prepared by Manufacturer A standards and are not design documents,
and specify or approve contractor shop drawings with equipment from Manufacturer imposing requirements that go beyond
B. If a problem occurs, Manufacturer A will disclaim responsibility, even if the problem
a code amounts to design. Unless the
code official is a licensed design profes-
can be traced directly to some feature of Manufacturer A’s software.
sional, “enhancing” a code could be
At least one modern case helps insulate manufacturers from liability when a com- construed as unauthorized practice of
petitor’s product is used. The case of The Village of Cross Keys Inc. v. The United engineering. Fortunately or unfortu-
States Gypsum Co.1 involved a special type of wall construction that U.S. Gypsum nately, most of the recent unauthorized-
developed to promote the use of its products. The architect used U.S. Gypsum’s practice actions essentially have been turf
design, but did not specify U.S. Gypsum’s products. When water leaks developed, the battles between architects and engineers.
owners sued the developer who, in turn, sued the architect. The architect and However, that experience does not mean
developer also sued U.S. Gypsum, claiming they had relied on USG’s design. In the a creative aggrieved party would not or
end, U.S. Gypsum was not liable because the architect did not specify U.S. Gypsum could not prosecute an unauthorized-
materials, and the contractor did not install U.S. Gypsum products. practice action against a code official.
The U.S. Gypsum case involved written specifications, not computer software.
Moreover, if a code official—licensed
or not—contributes to the design of a
However, there is no reason to believe that courts would view software differently
project, he acts outside the scope of his
from written specifications. Vendors who provide software can use U.S. Gypsum to employment. The official potentially
disclaim liability to engineers for software errors if a competitor’s product is installed. incurs personal liability for design errors
and omissions that cause damage or
FOOTNOTE injury.12 An official who acts in a design
1) 556 A 2d 1126 (Maryland 1989). capacity will be held to the standard of
care of a design professional regardless

HPAC Engineering • May 2001 35

 L E G A L L I A B I L I T I E S

of whether he is a licensed architect or sion that certain construction complies ment only for claims where the govern-
engineer. with the code can affect someone who ment has consented to be sued. For
later is injured as a result of an alleged example, the Federal Tort Claims Act
LIABILITY FOR FAILURE TO ENFORCE defect in the structure. Do these people contains an exception that protects the
CODES have any rights against the official? 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,
code strictly. immunity. Back when kings ruled the whether or not such statute or regulation
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
... provided that the spirit and intent of ordinary people had no recourse against The discretionary-function exception
the law is observed and that the applies to activities that require
public health, safety, and wel- the exercise of judgment and
fare is assured.”13 Courts seem to look to the discretion. The protection
Courts have supported the extends to those functions that
official’s right to make such availability of the technology and involve planning or imple-
modifications and waivers. For menting and executing govern-
example, strict code enforce- whether its application would have mental policy. The appropri-
ment was not required where ateness of that type of dividing
weather conditions made strict avoided the injury, regardless of line has been widely recog-
enforcement inadvisable, and nized.20 Courts have held that
other circumstances made
waiving strict compliance whether the technology is widely these activities are immune
from suit to protect them
advisable.14 “from a form of review which
In Rhode Island, a statute15 adopted. might impede governmental
relieves building officials of operations by subjecting gov-
personal liability for “any dam- ernmental 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
erty as a result of any act required or the government might have caused. Tort claims acts “simply removed the
permitted in the discharge of his or her When modern governments and defense of immunity in certain tort ac-
official 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
officials who act “in good faith and which makes federal employees liable for The public-duty doctrine. Like the dis-
without malice and within the scope of negligent acts within the scope of their cretionary-function exception, the pub-
their 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 govern-
outside the scope of official duties, such under like circumstances.”17 ment, but the government has not con-
as attempting to enforce provisions that The federal act opened the courthouse sented to be sued. Under the public-duty
go beyond code requirements. door to suits against the federal govern- doctrine, public officials owe their duty
ment. State and local governments to the public at large, not to specific indi-
LIABILITY 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
They also can affect people not directly governments.18 rejected the public-duty doctrine.22
related to the project. For instance, the The discretionary-function exception. In states that adhere to the public-duty
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 May 2001 • HPAC Engineering

 L E G A L L I A B I L I T I E S

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 discretionary-
function 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 deci-
sions, not individual actions.
Unlike the discretionary-
function exception, the pub-
lic-duty doctrine has afforded
more protection to munici-
palities 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. Framing-
ham,24 home buyers suffered
water damage as a result of
alleged negligence by a build-
ing inspector in issuing build-
ing 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 con-
struction of a home. The conservation commission forced the
owners to abandon the project because of wetlands. A town by-
law required the building-permit application to indicate com-
pliance with the Wetlands Act before the inspector could issue a
building permit. The plaintiffs argued that they relied on the in-
spector’s approval and that their reliance was foreseeable. They
further argued that their reliance on the building inspector’s ap-

HPAC Engineering • May 2001 37

 L E G A L
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 investi-
gation. The court also noted that the lo-
cal bylaw placed the initial burden of de-
termining compliance with the Wetlands
Act on the building-permit applicant.
Therefore, the inspector was not liable.27
• In Pinecrest Village Inc. v. MacMil-
lan,28 the local fire chief and building
inspector were sued when the fire chief
ordered a developer to install a fire-
sprinkler system after the building
inspector issued a permit for the project
without sprinklers. The building inspec-
tor relied on the building code, while
the fire chief relied on a statute
that was more restrictive than the
building code. The scope state-
ment in the building code de-
ferred 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 build-
ing inspector was negligent in
inspecting a building that col-
lapsed. The court found no spe-
cial duty and, therefore, no liabil-
ity, 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 up-
holding public safety and promot-
ing general welfare as their
38 May 2001 • HPAC Engineering
L I A B I L I T I E S
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, overcom-
ing 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 con-
vinced 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 Massachu-
setts 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.
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 pro-
tect 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 prop-
erty buyers recovered against the city
after they relied on the building inspec-
tor’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 infor-
mation. 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 some-
one 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 public-
duty 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
 L E G A L L I A B I L I T I E S

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 representa-
tions 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 Devel-
opment 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 home-
owners argued that the town became an agent for the builder
and, therefore, was liable when a clerk in the building inspec-
tor’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 reason-
ing 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 re-
quired either were implemented or were the cause of the failure.
Depending on the state and the facts of the case, the public-
duty 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 39

 L E G A L L I A B I L I T I E S

specific the official’s involvement with the prescriptive requirements in the code.users, and enforcers need to accept
the particular plaintiff or project was. Not surprisingly, performance-based them and learn how to use them. The
second-biggest impediment to per-
alternatives can give rise to litigation. The
NOVEL CONCEPTS, EQUIVALENCY, AND case of Krupp v. Building Commissioner formance codes may be poorly drafted
PERFORMANCE-BASED CODES of Newton43 addressed a challenge by criteria that leave designers and
Most codes contain some type of neighbors of three proposed steel-frame enforcers wondering how to comply.
equivalency statement. These provisions houses. The building inspector had To be useful, performance-based codes
allow “alternative material(s) or accepted the design as adequate, even should include at least one prescriptive
method(s) of construction ... when the though the steel to be used in the houses alternative that illustrates one way
code official finds that the proposed was not as thick as specified in city of meeting the code. Designers and
design is satisfactory and complies with ordinances. The plaintiffs, who un- enforcers can use the prescriptive alter-
the intent of the provisions of th(e) code doubtedly opposed the project for other native as an indication of what the
and that the material, method, or work reasons, claimed that permitting the code intends. Enforcers then can see
offered is, for the purpose intended, at alternative design undermined the ordi- for themselves how the proposed sys-
least the equivalent of that prescribed in nance and should not be allowed. The tem compares to traditional methods.
th(e) code in quality, strength, effective-court disagreed, in effect legitimizing The greater the differences, the more
ness, fire resistance, dura- explanation the enforcer might
bility, and safety.”42 require.
Equivalency statements When an official does not In fairness, then, how can offi-
are 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 “arbi-
opportunity 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 proj-
faster than codes are should be to ask questions, not ects. They are responsible for
developed, amended, and determining whether the submit-
adopted. As a result, codes reject the application. ted design complies with the
cannot cover all situations. code. Therefore, in cases that
Some projects could not be involve novel concepts or alterna-
built as designed and comply with the equivalency provisions in building codes. tive designs, the first step should be to
code without equivalency statements. As The next question becomes whether ask the designer to explain how the
more and more codes become perform- the official is required to evaluate and proposed design complies. The de-
ance-based, equivalency will become the accept alternatives. If the code states signer is responsible for documenting
rule rather than the exception. that equivalents “shall be approved” or the basis of design. The official is re-
Unlike conventional prescriptive that “nothing in this code is intended sponsible for requiring and under-
codes 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 alterna- Authors 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 Communica-
might require sufficient fire-detection, sented ... keeping in mind the objects tion is a two-way street. When an offi-
suppression, 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 rejec-
actually 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
are not new. Most current energy codes liability as well. Courts have imposed a duty on profes-
include a performance-based alternative The biggest impediment to per- sionals to use current technology in the
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 under-
energy than the same building built to way of the future, so code writers, stand the technology and apply it prop-

40 May 2001 • HPAC Engineering

 L E G A L L I A B I L I T I E S

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 performance-
based 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 Guide-
line for Managing Official Liability Associated with Building Reha-
bilitation, 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 41

 L E G A L L I A B I L I T I E S

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 public-
duty 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 municipal-
ity liable for “any claim based upon explicit and specific assur-
ances 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