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The owner of an unreinforced masonry commercial or office building
has been notified by the City that it is hazardous and that there
is a significant risk of damage in an earthquake. The City has no
program (as permitted by California law) to require upgrade of private
buildings to a life-safety standard rather than full current building
code compliance. Although the building owner
is not required by the current building code or the City to do any
rehabilitation, she chooses, on the advice of design professionals,
to spend 10 percent of the money required for complete compliance
with the current code to achieve 80 percent safety. An earthquake
occurs and there are some severe injuries, though substantially fewer
casualties than in other similar buildings where no rehabilitation
had occurred. What happens?
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The analysis of this
hypothetical situation is similar to that applied to the previous
situation where the owner did not act. Two factual differences,
and their impact on the analysis, should be noted.
First, the issue changes
from "was it negligent to take no action?" to "was
it negligent to undertake only limited rehabilitation?" The
types of evidence available to answer the latter question include
all of the types of evidence available to answer the first question.
Second, additional standards
are available, e.g., the building code, the code for retrofit of
existing buildings, and the California law permitting updating of
buildings to reduce (but not eliminate) the risk of life loss or
injury, rather than to full compliance with the current building
code for new construction. Usually, the defendant's negligence is
presumed if it does not comply with an applicable statute or regulation
and the non-compliance causes the kind of harm which the statute
or regulation was designed to avoid. In this instance, the standards
established by the building code for new construction do not require
any action on the part of the defendant. Therefore, it is not applicable
and there is no negligence per se.
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the standards established by the building code requirements may be
evidence relevant to determining the appropriate behavior in this
situation. Moreover, this assertion may be bolstered by legislation
that permits retrofit to standards that are less than current building
codes. If the intent of the legislation is to emphasize that even
partial adherence to current building code requirements is desirable,
then the probability that the building code is relevant evidence is
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While this example
has the building constructed of unreinforced masonry, the example
could have used another type of known hazardous building, such as
a soft-story apartment building, or a tilt-up concrete industrial
building. Unreinforced masonry buildings were constructed
prior to California's building code requirements for earthquake
resistance; soft-story and tilt-up buildings were not. This distinction
is of only limited relevance in determining liability in a particular
case as various engineering experts are brought before a jury to
tell their version of what an owner knew or should have known. On
the other hand, the California Government Code specifically singles
out unreinforced masonry buildings, requiring disclosure at the
time of sale, as well as the posting of warning placards. Thus,
it will be more difficult for an owner to plead lack of awareness
of a potential hazard with unreinforced masonry buildings.
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