The issue of municipal liability for damages which result from faulty building code inspections continues to be litigated in the courts. In a 2001 case, the Michigan Supreme Court declined to protect all governmental employees from liability for the failure to perform a duty owed to the public, holding that the general law of governmental immunity does not apply to liability for “grossly negligent” conduct that was the “proximate cause” of a plaintiff’s injuries. Importantly, however, the Supreme Court held that before reaching the issue of whether the governmental employee is “grossly negligent,” an individual suing a governmental employee must first establish a “duty.” Since 2001, the Court of Appeals has held that simply adopting the building code does not create a “duty” on the part of a municipality or its building inspectors. For example in the 2006 Court of Appeals opinion Rakowski v Sarb, the Court of Appeals held that a woman who was injured because a city inspected handrail failed had no cause of action against the building inspector or the city because the building inspector did not “conduct the inspection on behalf of [the municipality] as a warranty to the homeowner.” Instead, the building inspector “performed the limited function of visually assessing the ramp for code compliance.”
Nevertheless, cases against building inspectors and municipalities continue to be filed in the courts. In the recent case of Welgosh v City of Novi, Chris Weber, et al, the trial court and Court of Appeals once again held that neither the city’s building inspection department nor the individual inspector were liable for an improperly constructed residence, even if the building inspector should not have approved the foundation of the residence.
In that case, the Welgoshes hired Tri-Mount Custom Homes, Inc. to build an upscale residence in a Novi subdivision. During the basement excavation, the Welgoshes observed a stream of water running through the pit. Tri-Mount claimed the water was from an old farm tile, and Tri-Mount’s footing subcontractor advised the city inspector that he had plugged the drain and solved the problem. The inspector perceived no reason to doubt Tri-Mount and approved the footings. Later, the Welgoshes notified the inspector that they remained concerned about water in the basement excavation. The inspector visited the site and observed water in the basement pit and issued a stop work order. Tri-Mount installed edge drains, and upon a subsequent inspection, the inspector saw no signs of water and approved the basement work and subsequently issued a certificate of occupancy.
As it turns out, the water problem did not originate with a farm drain tile, but with groundwater due to the fact that the basement was not properly elevated above groundwater level. The Welgoshes resolved their claims against Tri-Mount through arbitration, and then sued the City and the inspector claiming gross negligence. Both the trial court and the Court of Appeals, however, held that the Welgoshes had no claim against either the building inspector or the City because it was Tri-Mount’s building code violations that was the direct cause of the problem:
“[E]ven if Weber’s negligence allowed Tri-Mount’s poor workmanship to go uncorrected, Weber’s conduct is not the one most immediate and direct cause of any damage. Accordingly, plaintiffs cannot establish liability in avoidance of governmental immunity.”
The Welgosh case is yet another reminder that despite the governmental immunity statute, and the case law supporting municipalities and building inspectors, property owners and injured claimants will continue to argue that the purpose of a building inspection is to provide some type of personal warranty against harm. Fortunately, as in the recent Welgosh case, the simple fact that the plaintiffs filed a claim against the city building inspector does not mean that in fact there is any liability on the part of the municipality or building inspector for a faulty building code inspection.