Why getting the right Building and Safety Code is important
I‘ve found many reports from experts citing Code violations that are inaccurate. In my opinion, citing the wrong codes or using the wrong codes in the expert report decreases the credibility of the expert, and weakens the attorney’s case substantially. When I work on Plaintiff cases, I’m aware that the main issue is finding a relevant code defect that contributed to the injury. Likewise, when I work with Defense attorneys, I’m tuned into inaccurate code references and defects that, in my opinion, didn’t contribute to the injury. When I explain to attorneys the reasons that this code should have been used and not that one; I sometimes think I’m getting a thousand yard glassy-eyed stare. While this post won’t delve into all of the various codes or standards that may apply in your slip and fall case, it will hopefully point you in the right direction. Below are five essential steps needed to assess applicable code.
1. Determine what happened
A slip and fall will involve different code sections and standards than a trip and fall. Usually, the Plaintiff will be able to describe if they slipped or tripped, and as an expert, I also correlate statements with the injury reports. Slips typically result in one set of injuries, and a trip often leads to different codes being invoked on the case. Likewise, the person’s status or relationship with the location of a fall will direct the code review to different codes. As an example, if the person injured is an employee of a business where a fall event took place, there are various OSHA standards that may apply.
2. Evaluate where it happened
The location has obvious implications in terms of who may be responsible, but also from a code perspective it’s important to establish the following:
- The physical and exact location of the start of the fall.
- Property type. There are different codes for Commercial, large residential, and public facilities than single and two family residences.
- Is the location of the incident a walkway, exit access, or means of egress?
- The date of construction or renovation of the space where the incident occurred.
3. Determine when construction was permitted, and what was the date of loss
When the construction of a building, staircase, or ramp was permitted establishes the relevant Building Code that was effective. Likewise, the date of loss establishes the relevant Fire and Safety Code that was in effect for buildings other than single and two family residences. A change in use for a building may also trigger a code update requirement, so it is important to be mindful of that fact. Correlating the date of loss with the date construction was permitted will determine what codes will apply for your case.
4. Account for jurisdiction
Each state, and some municipalities, enact and adopt and reference different year codes and standards. As an example, a structure built in June of 1996 in Connecticut would have to comply with the 1994 State Building Code, which references the 1987 BOCA National Codes and the 1986 CABO One and Two Family Dwelling Code. Start with the municipality or state to identify any potential local codes or regulation that may apply. States will typically modify the BOCA, CABO or ICC model codes to address their local issues. As an example, if an alleged defect was constructed in December 1999 in Connecticut, the 1996 BOCA National Building Code is the model code used for the 1999 State Building Code and applied to commercial buildings. On the other hand, the 1995 CABO One and Two Family Dwelling Code was used in developing the 1999 State Building Code. The 1999 Connecticut State Fire Safety Code adopted the 1997 NFPA LS 101 safety codes.
5. Obtain the relevant codes and standards
The Model Codes are updated every few years, and there is a typical delay in adoption by the states. Use a superseded code and you may miss some relevant change, use a future code and the citation may be new or modified by the effective code.
Residential single and two-family buildings may have been subject to BOCA, CABO or ICC building codes. The date of construction is the most important parameter in order to evaluate which code would apply. Be warned, these older codes are a bit expensive and hard to find, particularly local ones. In addition, there may not be effective statewide codes before the 1970’s. If a commercial or large residential building is where the fall event took place, then usually the best reference is the State Fire and Safety Codes, if they were adopted by the State. Some states did not adopt these standards as they apply to existing buildings and are retroactive. It is advisable to at least review the relevant Building Code as they may reference relevant standards that are used.
Some of the most commonly referenced sections are listed below. Please note that these standards and guidelines are updated on a frequent basis, and you need the standard that was in effect at the time of permitted construction or incident as applicable.
i. ICC/ANSI A117.1 – Accessible and Usable Buildings and Facilities, adopted by ADA.
ii. ICC 300-02 Standards on Bleachers, Telescoping Seating, and Grandstands.
iii. NFPA LS101 – Life Safety model codes.
iv. ASME A17.1 and A17.3 – Safety code for Elevators and Escalators.
v. ADAAG Chapter 4 – Accessible Routes.
Ground and Floor Surfaces
vi. ASTM F1637, first enacted in 1995. Standard Practice for Safe Walking Surfaces.
vii. ASTM F1694 – Standard Guide for Composing Walkway surface Investigation, Evaluation and Incident Report Forms for Slip, Stumbles, Trips and Falls.
viii. ANSI 137 Standard Specification for Ceramic Tile.
ix. ANSI A1264.1 & ANSI A1264.2 Safety Requirements for Workplace Walking/Working Surfaces and Their Access.
x. ANSI B101. Slip Resistance Testing and Auditing.
xi. ASTM F2966 Standard Guide for Snow and Ice Control for Walkway Surfaces.
xii. Federal Highway Administration – Sidewalk Assessment.
xiii. Manual for Uniform Traffic Control Devices, Signs, Pavement and Curb Markings.
xiv. NAHB – Alternative Stairway Safety Features.
xv. OSHA – 1910.22 General Requirements.
xvi. IES Lighting Handbook – Lighting Levels website references Handbook.
xvii. NFSI B101 Committee– National Floor Safety Institute, floor safety standards.
xviii. Tile Council of North America – TCNA – Evaluates slip resistance of tile flooring products, including methods of testing.
The most common code errors I’ve encountered fail to consider the dates of construction, and referenced inappropriate codes and standards. Many properties that were built on or before 1980 will not meet the building and safety codes that are currently in effect. Codes change to incorporate new research and to ultimately make properties safer. Many of these changes are not easily accomplished with older buildings, and exceptions are provided in the safety codes to allow for this deviation.
It is essential to have the right codes and apply the correct standards to your case in most jurisdictions the majority of the model safety codes do not retroactively apply to residential single and two family residences. Having the right codes and finding a defect at the site of the incident is the first part to substantiate your complaint, the second part is to link the defect as a contributing factor.
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