Since 2000, the International Code Council has published a version of its International Building Code every three years, setting forth the minimum requirements for design and construction of buildings within its scope. (A separate International Residential Code governs the construction of one- and two-family dwellings.) The Council also puts out an International Mechanical Code, International Plumbing Code and International Energy Conservation Code on the same three year cycle.
Currently New Hampshire has adopted the 2009 versions of these documents as its State Building Code (along with the 2014 version of the National Electrical Code). Municipalities are free to adopt stricter standards than contained in these codes, but few municipalities do so. Enforcement of the State Building Code is the responsibility of the municipalities; if they don’t have code enforcement officials, the State Fire Marshall steps in to fill that role.
RSA 155-A:2,VII is explicit that “The contractor of a building, building component, or structure shall be responsible for meeting the minimum requirements of the state building code and state fire code.” But responsible to whom? Certainly to the municipality for any fines assessed (RSA 155-A:8 and 676:17 authorize fines of $275 for the first offense and $550 for subsequent offenses, for each day that a violation continues after notice of noncompliance). Likely to the owner, who will have a hard time getting a certificate of occupancy without a code-compliant structure. But what about liability to third parties for physical injury or financial harm arising from the structure being out of code?
Our Supreme Court has yet to rely on this statute as a basis for contractor liability to an injured plaintiff, for the simple reason that no plaintiff has yet pressed the issue. But the Court has noted in other contexts that violation of a statute or regulation can amount to negligence when the defendant already owes a common law duty of care to the plaintiff. In such a case the defendant “will be held to the statutory standard of conduct if the plaintiff is in a class the legislature intended to protect, and the harm is of a type the legislature intended to prevent." Marquay v. Eno, 139 N.H. 708, 714 (1995). In the case of building codes, the harm intended to be prevented is physical injury from an unsafe structure. If, indeed, a contractor owes a common law duty to potential occupants of a building to make it safe―and despite occasional hints, the Supreme Court has never explicitly declared that such a common law duty exists―the State Building Code would likely set the threshold standard of care, in which case its breach would automatically amount to negligence.
As to financial harm, it’s pretty clear that RSA 155-A:2,VII imposes no liability on the contractor, nor does it establish the standard of care for a common law duty owed by the contractor to the owner. Building codes are intended “to protect the health and secure the safety of occupants of buildings, and not to protect the personal or property interests of individuals,” Island Shores Estates Condominium Ass'n v. City of Concord, 136 N.H. 300, 307 (1992). An owner who wants the latter protection must get it from his contract, not from the statute. (This is a variant of the “economic loss rule” that precludes recovery of purely financial harm in a tort case. I’ll have more to say about the “economic loss rule” in a future blog.)
RSA 155-A:2,VII also states that “No municipality shall be held liable for any failure on the part of a contractor to comply with the provisions of the state building code.” This language settles a question left unanswered by the Supreme Court in Island Shores Estates. The case rejected an owner’s claim of financial harm against a municipality based on a building inspector’s issuance of a certificate of occupancy in the face of code and structural problems, because no duty was owed by the city to protect the owner’s financial interests. However, the Court declined to decide “whether recovery can be had for a physical injury sustained on the premises in reliance on the inspection.” The statute now answers that question in the negative.
Currently New Hampshire has adopted the 2009 versions of these documents as its State Building Code (along with the 2014 version of the National Electrical Code). Municipalities are free to adopt stricter standards than contained in these codes, but few municipalities do so. Enforcement of the State Building Code is the responsibility of the municipalities; if they don’t have code enforcement officials, the State Fire Marshall steps in to fill that role.
RSA 155-A:2,VII is explicit that “The contractor of a building, building component, or structure shall be responsible for meeting the minimum requirements of the state building code and state fire code.” But responsible to whom? Certainly to the municipality for any fines assessed (RSA 155-A:8 and 676:17 authorize fines of $275 for the first offense and $550 for subsequent offenses, for each day that a violation continues after notice of noncompliance). Likely to the owner, who will have a hard time getting a certificate of occupancy without a code-compliant structure. But what about liability to third parties for physical injury or financial harm arising from the structure being out of code?
Our Supreme Court has yet to rely on this statute as a basis for contractor liability to an injured plaintiff, for the simple reason that no plaintiff has yet pressed the issue. But the Court has noted in other contexts that violation of a statute or regulation can amount to negligence when the defendant already owes a common law duty of care to the plaintiff. In such a case the defendant “will be held to the statutory standard of conduct if the plaintiff is in a class the legislature intended to protect, and the harm is of a type the legislature intended to prevent." Marquay v. Eno, 139 N.H. 708, 714 (1995). In the case of building codes, the harm intended to be prevented is physical injury from an unsafe structure. If, indeed, a contractor owes a common law duty to potential occupants of a building to make it safe―and despite occasional hints, the Supreme Court has never explicitly declared that such a common law duty exists―the State Building Code would likely set the threshold standard of care, in which case its breach would automatically amount to negligence.
As to financial harm, it’s pretty clear that RSA 155-A:2,VII imposes no liability on the contractor, nor does it establish the standard of care for a common law duty owed by the contractor to the owner. Building codes are intended “to protect the health and secure the safety of occupants of buildings, and not to protect the personal or property interests of individuals,” Island Shores Estates Condominium Ass'n v. City of Concord, 136 N.H. 300, 307 (1992). An owner who wants the latter protection must get it from his contract, not from the statute. (This is a variant of the “economic loss rule” that precludes recovery of purely financial harm in a tort case. I’ll have more to say about the “economic loss rule” in a future blog.)
RSA 155-A:2,VII also states that “No municipality shall be held liable for any failure on the part of a contractor to comply with the provisions of the state building code.” This language settles a question left unanswered by the Supreme Court in Island Shores Estates. The case rejected an owner’s claim of financial harm against a municipality based on a building inspector’s issuance of a certificate of occupancy in the face of code and structural problems, because no duty was owed by the city to protect the owner’s financial interests. However, the Court declined to decide “whether recovery can be had for a physical injury sustained on the premises in reliance on the inspection.” The statute now answers that question in the negative.
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