The origins of modern building codes lie in the Industrial Revolution.1 In fact, one of the nation’s first building codes was created as a direct result of the Great Chicago Fire of 1871.2 In order to placate the National Board of Fire Underwriters who threatened to cut off insurance for business, Chicago adopted the National Building Code, directed toward protecting the building rather than the people in the building.3 As it became clear that increased regulation of the building environment was required, code practitioners banded together to promulgate several model building codes.4 These model codes were developed for subsequent adoption by local and state government agencies as legally enforceable regulations and the foundation for the modern International Building Code (IBC).5
Three groups of practitioners began to dominate the field of model building codes: Building Officials and Code Administrators (BOCA) founded in 1915, International Conference of Building Officials (ICBO), founded in 1922, and Southern Building Code Congress, International (SBCCI), founded in 1940.6 Each group established the building codes for their particular geographic region.7 BOCA developed the National Building Code (NBC) which reflects the needs of highly urbanized environments in the northeast.8 ICBO published the Uniform Building Code (UBC) in 1927, which contained structural provisions reflecting the west’s exposure to earthquakes and the need for proper seismic design.9 Finally, SBCCI developed the Standard Building Code (SBC), placing particular emphasis on wind-resistive design in recognition of the southeastern states’ exposure to hurricanes.10 Because each of these model codes reflected the needs prevalent in their region, they differed in format, content, and appearance.11
In the early 1970’s, the American Institute of Architects (AIA) recognized that the nation would be best served by a comprehensive, coordinated national model building code.12 Recognizing the ambitiousness of this goal, the AIA developed a short term goal of reorganizing the three model codes around a common code format.13 To achieve the AIA’s goal, the three model code groups created the Council of American Building Officials (CABO).14 CABO provided the means to address matters of common concern among the model code groups and eventually developed a common format for the codes.15 The new format organized codes around similar materials and life safety.16 BOCA adopted this new format in 1993 and ICBO and SBCCI followed in 1994.17
After each model code group modified its own code books to reflect Building Component Manufacturers Conference’s (BCMC) format recommendations, a new umbrella organization called the International Code Council (ICC) was formed.18 Since its creation in 1994, the ICC’s focus has been the development of a single set of comprehensive and coordinated national building codes based upon the three different regional model codes.19 After three years of extensive research and development, in 1997, the first draft of the (now familiar) International Building Code (IBC) was circulated among the model-code agencies as well as code users.20 From this multiyear review, the original edition of the IBC was published in 2000.21
The IBC is now in use or adopted in all 50 states, the District of Columbia, Guam, Northern Marianas Islands, the U.S. Virgin Islands, and Puerto Rico.22 A new set of revised IBC codes are released every three years.23 and the recent 5th edition IBC 2012 has been adopted in many jurisdictions.
Violations of the building code can result in exposure to liability; however, the application of a theory of liability is not always universal. The following sections explore the major doctrines that most United States jurisdictions use to determine liability resulting from a building code violation, and analyze a few changes to key fire prevention provisions of the IBC 2012, which may be relevant to developers, design professionals, contractors, and their attorneys in litigation in coming years.
Impact of Building Code Violations Nationally
In a majority of jurisdictions across the United States, a building code violation gives rise to a negligence per se claim or a negligence claim.24 A typical example of negligence per se is one in which a contractor violates a building code when constructing a house. The house then collapses, injuring the homeowner. The violation of the building code establishes negligence per se, and the contractor will be found liable as long as the contractor’s breach of the code is the cause of the homeowner’s injury.
The doctrine of negligence per se arises from the premise that a violation of a statute results in strict liability.25 Generally speaking, to invoke the doctrine of negligence per se: 1) the statute must be intended to protect a class of persons, of which the plaintiff is a member; 2) the injury must fall within the type of injury contemplated by the statute; 3) the defendant must violate the statute; and 4) the violation must proximately cause the injury.26 If the plaintiff establishes these elements, the defendant is either negligent as a matter of law or prima facie evidence of negligence has been established.27
State and local governments often adopt building codes into their ordinances.28 Many courts have found that a violation of a municipal ordinance may give rise to negligence per se based on statutory effect.29 Logically, it would follow that a violation of a building code adopted by an ordinance would constitute negligence per se. However, the majority of building codes do not explicitly state the intent to protect a specific class of persons.30 This presents a question because a plaintiff must be a member of the class the statute protects in order to prove negligence per se.
Jurisdictions are divided as to the effect of this class issue. Some jurisdictions have not addressed the class issue, but hold that a violation of the building code is negligence per se.31 Alternatively, at least one jurisdiction has read the intent to protect a specific class of persons into the code.32 Finally, other jurisdictions have addressed the class issue, holding that negligence per se applies, but do not require the code to specify a particular class of individuals.33 For example, under Virginia law, a building code violation may constitute negligence per se despite the fact that the building code protects no specified class.34 The court recognized that the public, in general, benefits from the code’s provisions, noting that a person who never enters a building still could be injured as a result of a building code violation.35 Therefore, it appears that Virginia does not distinguish between a particular class and the general public when analyzing the class element of negligence per se as applied to its building code.
Thus, the majority of jurisdictions hold that, similar to the violation of an ordinance, the violation of the building code constitutes negligence per se, regardless of whether the code specifies a protected class. In any case, attorneys representing clients in the construction industry need to be keenly aware of how their jurisdiction interprets the alleged violation of a building code.
In a few jurisdictions, a violation of the building code is treated merely as evidence of negligence.36 This minority applies a variety of rationales to reach the conclusion that a violation of the building code does not constitute negligence per se.37 The most common rationale employed is a distinction between municipal ordinances and state statutes. A statutory violation is regarded as negligence per se, while an ordinance violation is evidence only of negligence. As mentioned above, building codes are often adopted through ordinances. Therefore, in these jurisdictions a violation of the building code merely constitutes evidence of negligence.
Additionally, other jurisdictions hold that because a building code is designed to protect the general public, it is merely evidence of negligence.38 These jurisdictions employ the same rationale as jurisdictions attempting to get around the class issue in negligence per se actions, but come to a different conclusion.
Regardless, if the jurisdiction is one where a building code violation constitutes negligence, or one where it constitutes negligence per se, attorneys and clients in the construction industry must be familiar with the provisions of the Code and the potential impact of a Code violation.
Significant Fire Prevention Changes in the IBC 2012
It is interesting to note that fire protection, at the forefront of the evolution of the model codes following the Great Chicago Fire of 1871, is still a dynamic consideration in the 2012 IBC iteration. Given that the changes to the Fire and Smoke Protection Chapter of the IBC are among the most significant changes to the 2012 Code, we have attempted to outline a few of those key changes that could drive litigation in future years.
Fire-Rated Glazing — Section 716.6
The 2012 IBC modifies two tables (716.5 and 716.6) to help clarify the applications for which fire-rated glazing is permitted or not permitted, and those instances that require fire-resistance-rated glazing versus fire-protection-rated glazing.39 Fire-protection-rated glazing blocks flames and smoke, while fire-resistance-rated glazing blocks flames, smoke, and heat transfer.40
The tables now show the required fire rating (in hours) and glass size limits (in square inches) for door vision panels, sidelites and transoms, and fire windows.41 The tables also present required fire ratings for wall assemblies.42 Rather than new requirements, the changes are primarily clarifications to the 2006 and 2009 IBC.43
Architects and glaziers should particularly be aware of where fire-protection-rated and fire-resistance-rated glazing is permitted or not permitted, and the limits on glass sizes in permitted applications.44 Tables 716.5 and 716.6 provide this information.45
Automatic Sprinkler Systems – Section 903
Sprinklers were required throughout buildings containing mercantile occupancies of any size that sell upholstered furniture in the 2009 code. In the 2012 IBC, the scope has been expanded to include mattresses, but is limited only to buildings with a Group M occupancy of greater than 5000 square feet (700 m2) where upholstered furniture is sold or displayed. Sprinklers also are now required for Group S-1 and F-1 occupancies over 2500 square feet (350 m2) that store or manufacture upholstered furniture or mattresses.
As a result of these modifications, architects and contractors working with owners should inquire into the types of products that will be stored or displayed in buildings. The modifications primarily impact factories, department stores, storage facilities and sales rooms, to name a few.
Fire Extinguishers – Section 906
A key exception for fire extinguishers was removed from the code for new and existing Group A, B and E occupancies equipped throughout with quick-response sprinklers. Therefore, Group A, B, and E occupancies will now be required to have portable fire extinguishers. This is particularly important because the change impacts both new and existing structures. Buildings that are used for assembly, educational purposes, or commercial use will be required to provide fire extinguishers. The scope of Group A, B, and E occupancies covers a wide variety of buildings and uses, so it is necessary to determine if a particular building falls within the scope of the modified rule in order to maintain compliance.
A new exception specific to Group R-2 occupancies was added requiring each dwelling have a portable fire extinguisher having a minimum rating of 1-A:10-B:C. Portable fire extinguishers are no longer required in most public and common areas of Group R-2 occupancies, so long as a complying extinguisher is provided within each individual dwelling unit. The exception will impact buildings such as apartment buildings, condominiums, dormitories, fraternities, sororities, and other residential occupancies containing sleeping units, or more than two dwelling units where the occupants are primarily permanent in nature.
Fire Alarms – Section 907
The fire alarm requirements found in Section 907 contain a few key revisions. The first is the requirement for a manual emergency voice communication system for Group E occupancies with an occupant load of 30 or more. This system replaces the traditional occupant notification system required by the 2009 IBC. Also of note in both the 2009 and 2012 editions, the activation is manual versus automatic. Another key change is that the trigger for manual fire alarm systems in Group E occupancies lowered from greater than 50 occupants to greater than 30 occupants.
The occupant load change is important because it likely brings more buildings within the scope of Group E that were not previously considered to be under the Group E classification. This particular issue could arise when a building’s use is altered and thus was not previously subject to this requirement, but due to the change of use, now falls under the newly modified Group E fire alarm requirements.
Additionally, mass emergency voice communication system messages in stadiums, arenas and grandstands are required to be captioned. This is required only when Section 122.214.171.124 requires the captioning of audible public announcements. Accordingly, the captions of audible public announcements are required for assembly spaces having a public address system and 15,000 or more seats.
Group R-2 college and university buildings are now required to have an automatic smoke detection system tied into the occupant notification system. The focus is on dormitory type buildings. The smoke detection system is now required in certain public and common spaces and the required smoke alarms within individual dwelling and sleeping units must be interconnected with the building’s fire alarm and detection system.
Further, the smoke alarm interconnection requirements are now applicable to Group I-1 occupancies housing more than 16 persons, on a 24 hour basis living in a supervised residential environment and include allowances for use of wireless alarms. This requirement will typically apply to hospitals, assisted living, and social rehabilitation facilities.
Carbon Monoxide – Section 908
Requirements for carbon monoxide detectors in new and existing residential (Group R) and institutional (Group I) occupancies with fuel-burning appliances or attached garages have been added to the IBC. These provisions apply to new construction, but a similar requirement was added into the International Fire Code (Section 1103.9) to deal with existing buildings. These provisions are consistent with the requirements added to the International Residential Code in the 2009 edition for carbon monoxide (CO) detectors in all new construction of one- and two-family dwellings.
This requirement is predominately related to dwelling structures where individuals will be sleeping, either as a resident or as an institutional guest, such as a hospital patient. The installation of the carbon monoxide alarms must comply with NFPA 720 and be located outside of sleeping room area and on every level of the unit. These type of detectors offer enhanced protection for occupants who are often times unaware of the presence of carbon monoxide usually due to the malfunction of a fuel burning appliance.
Due to the ever changing needs of building inhabitants, the advancement of design principles and the implementation of new materials, the IBC will likely continue to evolve, aiming not only to protect the structural interest of the building but also to protect the safety of the individuals inside the structure. The Great Chicago Fire of 1871 was a catastrophe that led to the development of the first building code. Since then, building codes have continued to progress to maintain modern standards of safety, and this article seeks to highlight some of the changes related to fire prevention in the 2012 IBC. It is important for developers, design professionals, and contractors to make themselves aware of the modifications implemented by the IBC every three years to avoid potential exposure of liability.
1. David P. Tyree & Dennis L. Pitts, The International Building Code and International Residential Code and Their Impact on Wood-Frame Design and Construction 2, American Wood Council, http://www.awc.org/Publications/papers/ASCEIBC-IRC.pdf.
2. Francis D.K. Ching & Steven R.Winkel, FAIA, Building Codes Illustrated 1, (John Wiley & Sons, Inc., 2d ed. 2007) available at http://books.google.com/books?hl=en&lr=&id=2yNzfr8NcDkC&oi=fnd&pg=PR9&dq=history+of+the%22international+building+code%22&ots=6lfNQ3Qz8n&sig=gRkjh_XMKX6wP-UNAgazmaW0VSU#v=onepage&q=history%20of%20the%20the%20%22international%20building%20code%227f=false.
3. Gregory J. McFann, The History of Building Codes, TPREIA (June 24, 2014), http://www.tpreia.com/historyofcodes.html
4. Tyree & Pitts, supra note 1, at 2.
5. Ching & Winkel, supra note 2, at 2.
7. McFann, supra note 3; Tyree & Pitts, supra note 1, at 2.
8. Ching & Winkel, supra note 2, at 3; Tyree & Pitts, supra note 1, at 2.
9. Ching & Winkel, supra note 2, at 3; Tyree & Pitts, supra note 1, at 2.
10. Ching & Winkel, supra note 2, at 3; Tyree & Pitts, supra note 1, at 2.
11. Tyree & Pitts, supra note 1, at 2-3.
12. Id at 3.
20. McFann, supra note 3.
21. Ching & Winkel, supra note 2, at 3.
22. International Code Adoptions, International Code Council, (June 24, 2014), http://www.iccsafe.org/gr/Pages/adoptions.aspx
23. Jeremy Thompson, The History of Building Codes and How They Are Changing, The J. Thompson Builder’s Blog (June 24, 2014) http://jthompsonbuilders.com/2013/08/the-history-of-building-codes-and-how-they-are-changing/.
24. Kathy R. Davis, Are They “Negligence Per Se”? Building Code Violations, 48 No. 9 DRI For Def. 50.
25. See, e.g., Parker Bldg. Svcs. Co. v. Lightsey, 925 So.2d 927 (Ala. 2005); Brown v. South Broward Hospital Dist., 402 So.2d 58, 60 (Fla. Dist. Ct. App. 1981).
26. See Steele v. Evenflo Co., 178 S.W.3d 715 (Mo. Ct. App. 2005); Boyer v. Brown, 522 S.E.2d 692 (Ga. Ct. App. 1999); Osti v. Saylors, 991 S.W.2d 322 (Tex. Ct. App. 1999); Rayfield v. South Carolina Dept. of Corrections, 297 S.C. 95, 103-04, 374 S.E.2d 910, 914 (Ct. App. 1988); Mills v. Estate of Scwartz, 722 P.2d 1362 (Wash. Ct. app. 1986).
27. See, e.g., Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 847 (10th Cir. 1986).
28. Davis, supra note 24.
31. See, e.g., Lassiter v. Cecil, 145 N.C. App. 679, 684 (Ct.App. 2001).
32. See Chambers v. City of Helena, 2002 MT 142, 310 Mont. 241, 253, 49 P.3d 587, 594 overruled on other grounds by Giambra v. Kelsey, 2007 MT 158, 338 Mont. 19, 162 P.3d 134.
33. See, e.g., O’Neill v. Windshire-Copeland Assocs., L.P., 595 S.E.2d 281, 284 (Va. 2004).
36. 132 A.L.R. 863 (Originally published in 1941).
37. Davis, supra note 24.
38. Russ v. Wohllheim, 915 So.2d 1285, 1286 n.1 (Fl. Dist. Ct. App. 2005) (citing Lindsey v. Bill Arflin Bonding Agency, Inc., 645 So.2d 565 (Fla. Dist. Ct. App. 1994); Grand Union Co. v. Rocker, 454 So.2d 14 (Fla. Dist. Ct. App. 1984).
39. Glass Ass’n of N. Am., Fire-Rated Glazing Changes in 2012 International Building Code (IBC), Glass Info.Bull. 1, 3 (Dec. 2011), http://www.northalabamaglass.com/forms/educational/FRGC_Fire-RatedGlazingChangesInInternationalBuildingCode.pdf.
44. Id. at 4.