How many property owners are more than happy taking the building inspector’s word to ensure that their construction project is safe and code compliant? I bet its a lot. Well, if you thought you could hold your inspector to his or her evaluation, think again.
A recent case explored the Washington Public Duty Doctrine at length, reinforcing the level of immunity to which building officials have become accustomed. Pierce v. Yakima County, Divison III No. 29568–1–III, involves a lawsuit by a homeowner against a building official and agency. The homeowner was injured and his home destroyed when faulty and noncomplying construction caused an explosion. Yakima County inspectors had approved the work.
The General Rule: The Public Duty Doctrine
In determining if a duty of care exists when a claim is asserted against the state, Washington courts consider the “public duty doctrine,” which requires a showing that “the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general.” In essence, the court opined that the inspector has to take on a more personal relationship with the property owner, ensuring something more than what it is required to do by law.
According to the court, the public duty doctrine is a “focusing tool” used to determine whether the state owed a specific duty to a particular individual, the breach of which is actionable, or merely a duty to the “nebulous public,” the breach of which is not actionable.
The Four Areas of Exception
The are only four circumstances, referred to as “exceptions,” where a claimant might be able to maintain an action despite the Public Duty Doctrine:
(1) where there is a “legislative intent” to impose such a duty,
(2) where the state is guilty of a “failure to enforce” a statutory duty,
(3) where the government has engaged in “volunteer rescue” efforts, and
(4) where a “special relationship” exists between the plaintiff and the state.
Donohoe v. State, 135 Wn.App. 824, 834, 142 P.3d 654 (2006)
The two prongs that most often come into dispute are the “failure to enforce” and “special relationship” ones. These two offer opportunities to injured owner where either the building inspector failed to abide by a mandatory enforcement measure (failure to enforce) or gave specific assurances to an injured individual that were reasonable relied upon.
Failure to Enforce
In Pierce, the court determined that the claimant could not present a viable case for the “failure to enforce” exception. The specific “enforcement sections of the applicable code do not create a mandatory duty to take specific action.” The statute that the claimant relied upon “does not provide a specific directive to the governmental employee as to what should be done” and merely “vests discretion in the inspector in this situation.”
In this specific example, the inspector was given authority to demand disconnection of a non-compliant system. Unfortunately, the language of the statute was clear that this was an option and not a mandatory action. There are many occasions, however, where the codes do require that an inspector (any inspector for that matter) take an affirmative action to prevent harm. In those case, an inspector might be considered liable.
Special Relationship
The “special relationship” exception imposes a duty of care upon the state where: (1) a direct contact between a public official and the plaintiff occurs, (2) the public official provides express assurances, which (3) give rise to justifiable reliance on the part of the plaintiff. The court defined an “express assurance” as one where “an individual makes a direct inquiry and the government clearly sets forth incorrect information in response.” If that information is reasonably relied upon, a claim may persist.
Again, in this example, the court did not find such an interaction. But, its clear that this is the best opportunity for a building owner to build an action against a building official. Owners that directly engage their building officials in conversations about the work may be able to extract express assurances about the work.
The moral of the story is that the law is against all owners trying to recover against a building inspector. While there are a few exceptions, we have not seen a good sample of cases establish liability under them.
The best thing that a building owner can do is ensure that its contract covers code compliance, and holds the builder responsible for damages caused by their work, regardless of whether it is approved by building officials. Another option for owners is to consider using a private third-party building inspector.