So many times, construction industry participants view compliance with the applicable codes or standards as satisfaction of the participant’s duty of care – or evidence by itself that the participant was not negligent in performance of its design and/or construction duties. However, the Tennessee Court of Appeals recently clarified, in a dispute over an allegedly dangerous threshold in a residence, that the threshold’s compliance with the applicable building code was only the initial (or threshold) consideration, and the threshold (or step) in question could be viewed as dangerous and defective even if it was code compliant.
This decision was in the case of Brown v. Mercer-Defriese, 2016 Tenn. App. LEXIS 30 (Tenn. Ct. App. Jan. 25, 2016). The plaintiff in that case was a woman who suffered significant injuries (broken femur and hip) when she tripped over a small step, or threshold, in the defendant’s rental property while the plaintiff was touring the property as she was considering whether to rent the property. This small step, stair, or threshold (as it was described by the various witnesses) was about 3” in height. It was located in the middle of a doorway that led to the back part of the house, which included a small room, laundry room and a den. The plaintiff successfully crossed this threshold when she went to the back of the house. However, when she was returning to the front of the house, she fell over this threshold, suffering her injuries.
Obviously, a lawsuit was filed by the plaintiff against the defendant owners. The plaintiff argued that this step, or threshold, was dangerous and defective – a key element to the plaintiff’s legal theory against the defendant owners. More specifically, the plaintiff argued that the step was not sufficiently marked or highlighted such that a person passing by or over it without being familiar with the property would be more likely to fall over the step, or threshold. The defendant argued that it was open and obvious, such that if the plaintiff had looked down she would have seen the step and avoided the alleged hazard.
The plaintiff had an expert that testified for her at the trial. Her expert described the step as a “tripping hazard.” He also explained that the transition was obscured, in part, by the similarity in colors from one area to the other:
[I]n the former photograph you can see up there that those were all — the nosing and the height of the threshold, basically it’s all the same color, it’s all the same brown, not terribly different from the bar that’s in front of you there and shined and so you look down at it and maybe you don’t see it to be a tripping hazard. You just don’t see anything unusual there.
Importantly, “[a]ll three of the experts [plaintiff’s expert, defendant’s expert and the City building official] were in agreement that the single three-inch step was not in violation of the International Residential Code, the building code applicable in Chattanooga to detached single family and two-family dwellings and multiple single-family dwellings not more than three stories high.”
However, the Tennessee Court of Appeals disagreed with the trial court’s decision to dismiss the case. The Court of Appeals explained that, “[g]enerally speaking, an allegedly dangerous or defective condition’s compliance with a regulatory code is relevant and often probative, but not conclusive, on the question of the defendant’s negligence.” This is significant because the step’s compliance with the applicable building code was one of the main reasons for the trial court’s decision to dismiss the case.
Yet, the Court of Appeals explained that compliance with the code is only part of the analysis. The step, or any other condition, can be dangerous and defective even if it is code compliant. As the Court of Appeals explained, this step could be viewed by a jury as being a dangerous condition regardless of its compliance with the code:
The area with the three-inch “lip” or small step is a threshold made of hardwood that appears to be around twelve to fifteen inches wide. The flooring of the upper room consists of hardwood strips that run perpendicular to the threshold and are a slightly darker shade of brown. In all of the photographs, the coloring of both the tile floor and the threshold is a brown that is, arguably, nearly identical. There is evidence in the record suggesting no clear visual contrast between the lower floor and the threshold that is elevated three inches higher. Defense expert Rucker recognized this fact in testifying that the step does not “have an obvious visual cue provided.” Plaintiff’s expert Mason observed in his testimony that “basically it’s all the same color, it’s all the same brown.” Moreover, the photographs are well lit; Plaintiff testified that at the time she tripped “it was beginning to get dark,” leading to a rational inference that the step may have been less visible under the darker conditions when she fell. In short, from the proof presented, reasonable minds can differ on whether the condition of the step was open and obvious. Similarly, a trier of fact could reach more than one conclusion as to whether it was reasonably foreseeable under the circumstances presented that a person unfamiliar with the house could trip over such a step.
As a result, the Court of Appeals decided to reverse the trial court and instructed the trial court to proceed with a jury trial on the question of whether the step was a dangerous or defective condition, regardless of whether it was code compliant.
What this Means:
This means that designers, contractors and even owners in Tennessee must recognize that compliance with a particular code or standard is not the end of the inquiry. This can be true for not only premises liability situations, but also other design and construction situations. The question of whether the condition or aspect of the project is code or standard compliant is certainly probative, or relevant, to the discussion and inquiry. Compliance with the code or standard can certainly be used to defend the design or construction. However, it does not, by itself, eliminate the possibility of a finding of negligence in all situations. It is important for designers and contractors to consider the specifics of the application or situation to further evaluate whether compliance with the code is sufficient – especially for elements that may be exposed to members of the public.