Sunday, June 11, 2017

Your Maryland contractor cannot delegate his building code responsibilities.

Maryland's Court of Special Appeals has made clear what construction law practitioners have been arguing in the trial courts for a long time -- A general contractor or developer may not delegate its responsibility to comply with building codes to sub-contractors.

On May 31, 2017 the COSA decided Marrick Homes v. Rutkowski, an appeal from a very large money judgment by a trial court in favor of a severely injured homeowner against a general contractor. Mr. Rutkowski fell thirteen feet when a protective railing across a patio door opening failed. He broke bones and sustained a head injury. Expert witnesses explained that the wrong nails were used to secure the protective railing to the house, and that the connections failed when Mr. Rutkowski placed his weight against the railing. The railing did not comply with local building codes.

The work was done by a subcontractor of the defendant at least seven years before, when the house was owned by someone else. Mr. Rutkowski had even been living in the house for several months before he fell.

The contractor defended by saying that the injury was too far removed in time to be related to any action by the contractor.  It also argued that adherence to local building codes had been delegated to the subcontractor paid to install the railing.

The appellate court upheld the trial court judgment. The obligation to comply with all applicable building codes, including those that apply to the work of sub-contractors, cannot be delegated away by the general contractor. The property owner can look only to the general contractor/developer for compliance.

The court also reminds us that claims for personal injury arising from a contractor's or developer's negligence must be brought withing ten years under Maryland's "Statute of Repose." Once an injury is discovered, a lawsuit must be filed within three years of discovery, but in no event later than ten years from the date of the work performed by the defendant.  In this case, the passage of seven years did not bar recovery by the plaintiff.

For homeowners and buyers of real property, one lesson of the case is to look beyond a contractor's defense of "I gave responsibility for that work to a sub-contractor." This will not fly, and our office has obtained several judgments against bad contractors who asserted this exact defense- The sloppy or negligent contractor/developer cannot shed its responsibility to adhere to local building codes.

For the contractors and developers, the case is also a reminder that sub-contractors selected by the should be viable and fully insured. This preserves the contractor's rights of indemnity (to recover from the sub that actually performed the bad work). In this case, the sub-contractor that installed the defective railing had gone out of business shortly after the work was performed, leaving the contractor to bear the full weight of financial responsibility for the plaintiff's injuries.

Thomas C ValkenetClients’ ChoiceAward 2017