by Eric J. Miersma
“Building homes is a complicated activity. The average layman has neither training nor experience in the construction industry and ordinarily cannot determine whether a particular building has been built with the requisite skill and in accordance with the standards prescribed by law or prevailing in the industry.” (Miller v. Los Angeles County Flood Control District (1973) 8 Cal.3d 689, 702-703.) This is what the California Supreme Court wrote in the context of whether a layperson could offer an opinion that a home (or any building) was negligently constructed. This case is now routinely cited in California for the proposition that only experts can offer an opinion on whether a contractor fell below its standard of care.
The standard of care is anything but easy to determine. In legalese, the question is whether a person did or did not do something that a reasonably careful person would or would not do in the same or similar situation. Even the California Supreme Court admits that application of this standard is “inherently situational” and will vary from case to case. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997.) When it comes to construction, the myriad factors that affect each trade’s performance result in a truly unique response every time someone asks whether the contractor fell below its standard of care.
You might think the simplest analysis is whether a contractor complied with the applicable building codes. After all, when a contractor is accused of defective construction, their first response might be that the inspector signed off on their work so it must be okay. However, building inspectors generally have discretionary immunity. This means that if the inspector made a mistake, he or she (and the governmental entity) cannot be held liable. It is for this reason that plaintiffs’ counsel often try to exclude evidence of compliance with building codes from trial. They argue that such evidence is irrelevant and prejudicial. They say that the building code is not necessarily the standard of care, and therefore compliance with it does not mean that you have met the standard of care. Unfortunately, they are right. Although the building code is usually the minimum standard and, while compliance is certainly a step in the right direction, it does not guarantee that you met the standard of care. The defense response is typically that, while plaintiffs may be correct, the jury should be still allowed to hear evidence of code compliance because it is one of the factors the jury may consider to determine whether the contractor met its standard of care.
Of course, if there is no applicable building code, then you will need to look somewhere else to determine the standard of care. The contractor’s next argument is usually something like, “I did my work the same way everyone else in the industry does it.” The legal response to this is similar to what your mother might have told you when you tried to justify going along with the crowd, “If everyone else jumped off a bridge, would you do it too?” In other words, just because everyone else does it does not mean its right. In court, the judge will instruct the jury that it may consider custom and practice as a factor to determine whether a person acted reasonably, but that following a custom and practice does not excuse unreasonable conduct and the jury should consider whether the custom and practice itself is reasonable. (CACI 413.) This is where industry guidelines and standards fit in. For example, ASTM, ACI, and ICRI, to name just a few industry organizations. While they do not establish the standard of care on their own, they function with building codes and other references to form the basis for expert opinion regarding the standard of care.
In California, there is another consideration applicable to new residential construction that effectively renders the entire standard of care question moot where it applies. California Civil Code section 895, et seq., also known as SB 800, codifies what are known as “functionality standards.” These establish the standard of care for every building component and failure to meet these standards exposes the builder to liability for deficient construction. For example, to name a few with respect to concrete, “Foundation systems and slabs shall not allow water or vapor to enter into the structure so as to cause damage to another building component,” or “Foundation, load bearing components, and slabs, shall not contain significant cracks or significant vertical displacement.” Not only does this have the effect of making a builder strictly liable for something that is not necessarily below the standard of care, but it also eliminates case law requiring proof of damages. At least the statute did not say that concrete should not crack at all. I will leave it to the experts to argue about what a “significant” crack is.
Building is a complicated activity. Competent contractors know whether they are doing it right or not. The best often become expert witnesses or participate in industry organizations to help everyone do it right. The resulting industry guidelines, along with building codes and industry customs and practices, all form the basis for the standard of care.
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