Every three years the International Code Council updates its building codes, which eventually become the basis for codes adopted by the states. But the law takes a while to catch up. From September of 2019 until now, the 2015 versions have been incorporated into New Hampshire’s state building code, RSA 155-A. That has just changed. On July 1, 2022, Governor Sununu signed into law legislation adopting the 2018 versions of the International Building Code, International Residential Code, International Plumbing Code, International Mechanical Code, International Energy Conservation Code and International Existing Building Code, along with the 2020 National Electrical Code.
The key changes from the 2015 edition of the International Building Code may be found here. The key changes from the 2015 edition of the International Residential Code may be found here.
When New Hampshire last updated its building codes in 2019 (from the 2009 versions to the 2015 versions) I blogged (#80) on the ambiguities in the transition rules for construction projects straddling the effective date, an issue that was left to the municipalities to deal with. This time the new law has come up with a solution: the version in effect at the time of application for the building permit will remain in effect for the duration of the permitted work unless the applicant elects to be governed by the 2015 version – an election available for six months after the effective date of the new law.
As I have earlier blogged (#25), building codes provide the standards of care for purposes of negligence lawsuits only if a common law duty to protect the injured party from the type of harm sought to be avoided by the codes already exists independently of the codes. If such a duty exists, construction that violates the newer code but complies with the older code will present an interesting question: can a finding of negligence turn on the fortuity of which version the builder elected to follow? It will be hard to argue that a builder’s failure to comply with the newer code he chose to follow was negligent if his construction would have met the prior code he could have chosen. It will likewise be hard to argue that projects failing to comply with a change effected by the 2018 code are built negligently when identically-constructed projects that happened to be commenced earlier, and hence are still governed by the 2015 code, are not. Still, a line has to be drawn somewhere, and if a failure to meet code is to establish negligence per se, drawing it elsewhere than at the six month deadline will enmesh the courts in climbing a slippery slope.
This problem would disappear if courts treated a failure to meet applicable building codes as merely evidence of negligence, not as negligence per se. Fifty years ago Chief Justice Kenison wrote “There is no unalterable rule in this State on the admissibility of safety codes as evidence on a question of the applicable standard of care . . . unless they have been incorporated into statutes or ordinances by either State or local legislative bodies.” Lemery v. O’Shea Dennis, Inc., 112 N.H. 199, 200 (1972). Treating such codes as admissible on the issue, not as unalterable establishments of the standard of care, strikes me as the sounder approach. I applaud the trial judge in Mailhot v. C & R Construction Co., 128 N.H. 323 (1986), who gave an “evidence of negligence” jury instruction rather than a negligence per se instruction in a case involving OSHA regulations. (On appeal, the plaintiff’s challenge to this instruction was rejected for failure to preserve the argument.)
And just as failure to meet code should not automatically constitute negligence, neither should meeting code be a blanket absolution from negligence. Schlis v. Target Corporation, No. 19-cv-1201-JD, 2021 DNH 068 (April 6, 2021) (“Target has not identified any legal authority holding that complying with building or safety codes applicable at the time of a building’s construction or initial opening per se satisfies its duty of care.”).
The key changes from the 2015 edition of the International Building Code may be found here. The key changes from the 2015 edition of the International Residential Code may be found here.
When New Hampshire last updated its building codes in 2019 (from the 2009 versions to the 2015 versions) I blogged (#80) on the ambiguities in the transition rules for construction projects straddling the effective date, an issue that was left to the municipalities to deal with. This time the new law has come up with a solution: the version in effect at the time of application for the building permit will remain in effect for the duration of the permitted work unless the applicant elects to be governed by the 2015 version – an election available for six months after the effective date of the new law.
As I have earlier blogged (#25), building codes provide the standards of care for purposes of negligence lawsuits only if a common law duty to protect the injured party from the type of harm sought to be avoided by the codes already exists independently of the codes. If such a duty exists, construction that violates the newer code but complies with the older code will present an interesting question: can a finding of negligence turn on the fortuity of which version the builder elected to follow? It will be hard to argue that a builder’s failure to comply with the newer code he chose to follow was negligent if his construction would have met the prior code he could have chosen. It will likewise be hard to argue that projects failing to comply with a change effected by the 2018 code are built negligently when identically-constructed projects that happened to be commenced earlier, and hence are still governed by the 2015 code, are not. Still, a line has to be drawn somewhere, and if a failure to meet code is to establish negligence per se, drawing it elsewhere than at the six month deadline will enmesh the courts in climbing a slippery slope.
This problem would disappear if courts treated a failure to meet applicable building codes as merely evidence of negligence, not as negligence per se. Fifty years ago Chief Justice Kenison wrote “There is no unalterable rule in this State on the admissibility of safety codes as evidence on a question of the applicable standard of care . . . unless they have been incorporated into statutes or ordinances by either State or local legislative bodies.” Lemery v. O’Shea Dennis, Inc., 112 N.H. 199, 200 (1972). Treating such codes as admissible on the issue, not as unalterable establishments of the standard of care, strikes me as the sounder approach. I applaud the trial judge in Mailhot v. C & R Construction Co., 128 N.H. 323 (1986), who gave an “evidence of negligence” jury instruction rather than a negligence per se instruction in a case involving OSHA regulations. (On appeal, the plaintiff’s challenge to this instruction was rejected for failure to preserve the argument.)
And just as failure to meet code should not automatically constitute negligence, neither should meeting code be a blanket absolution from negligence. Schlis v. Target Corporation, No. 19-cv-1201-JD, 2021 DNH 068 (April 6, 2021) (“Target has not identified any legal authority holding that complying with building or safety codes applicable at the time of a building’s construction or initial opening per se satisfies its duty of care.”).
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