A number of inspectors have shown an interest in the case of the Aspen inspector charged with negligent homicide because a family died of carbon monoxide poisoning in a residence he had inspected and have asked me about the outcome. The good news for the inspector is that the case was dismissed in November but without a finding as to whether he was immune from prosecution under the law. Instead the case was dismissed because the indictment failed to show that the matter occurred within the time set by the statute of limitations. The prosecution failed to plead the date of the deaths in the indictment. It was an odd ending to a very troubling case. The civil suits are still pending.
A former inspector for Aspen, CO faces criminal negligent homicide charges for the death of a family due to carbon monoxide poisoning. A pipe from the boiler used to melt driveway snow was disconnected allowing carbon monoxide to enter the residence. The inspector had signed off on the work. The city of Aspen, ICC, the county and the Colorado Municipal League have called for a dismissal of the charges. The inspector is asking that the charges be dismissed due to the immunity granted to public employees by state law. This is the first time I’ve come across such a case. It is quite troubling and contrary to most of the caselaw in this country that discusses the public duty doctrine which states that inspectors owe a duty to the general public but not specific individuals in most cases. This is a good example of how a tragedy can lead to some questionable law enforcement decisions. I would have a different viewpoint if the case involved bribery or some other type of unlawful behavior but there is nothing like that in this case. I have seen many cases where there has been negligence by building inspectors but have never even considered that the proper remedy would be criminal prosecution.
Insurance companies can be allies in the fight for life/safety compliance. They have considerable power over property. If persons insured by the companies don’t live up to the standards of the policy, they may lose their insurance benefits. A judge in Massachusetts has ruled that an insurance company does not have to pay for a fire that occurred at a restaurant because the owner did not properly maintain a fire suppression system. The Insurance Journal reports:
At issue is an exclusion in a commercial lines policy issued to the French King restaurant in Erving, which required the restaurant owner to maintain a fire suppression system. The insurer — Interstate Fire & Casualty Co., a subsidiary of Fireman’s Fund — claimed that the fire-suppression system installed at the restaurant was obsolete, and therefore triggered the exclusion and did not require them to indemnify the restaurant.
The court agreed and ordered the restaurant to pay back the $15,000 advance given to the owner before the investigation was completed. I’ve always wished there was a separate registry of properties and their insurance companies so inspectors could alert the insurance company about dangerous conditions. (I make no comment as to whether this might violate privacy laws in some states). Most owners will act so they don’t lose their insurance unlike the owner in this case. The article said that the owner could have upgraded his system for $3,250. Unfortunately, fire inspectors have to repeatedly try and obtain compliance because of the real threat of fire while some owners only see the extra cost to themselves when asked to comply.
There are consequences for the homeowner who has work done on his or her home without a permit beyond contending with the local building official. What if a fire breaks out and an insurance claim is filed. Will the insurance company pay? Sam Schneiderman, broker owner of Great Bostom Home Team recently addressed this issue on the Bostom.com’s blog, Boston RealEstateNow. He asked a number of insurance agents and brokers what would happen if someone finished off the attic of a home without permits and a fire destroyed part of the residence. One possibility was that the insurance company would pay the claim and then sue any prior owner responsible for work done if negligence were involved. (Often homeowners don’t realize that work was done without a permit unless they check with the local building department before buying a residence). Another insurance agent said that the company might not cover construction defects. Homeowners looking to save money are being penny-wise and pound foolish when they try to save a few dollars by not applying for a building permit. Having a professional inspect the property not only protects their safety but also protects against liability in the future when it comes time to sell the residence. Work performed without a permit must be disclosed at the time of sale. Failure to do so could result in legal complications for the seller down the road.
I actually escaped the snow in Chicago this week by heading up to the Region III ICC conference in Minnesota where the weather was sunny. I always have a great time at that extraordinary conference. It was great to see that attendance was very healthy and maybe we’re beginning to see a thaw in some of the gloom we’ve all been dealing with since the economy tanked. I taught Advanced Legal Aspects for Fire Code Inspectors and the inspectors asked a lot of good questions. We had a healthy discussion about post-deprivation hearings after an emergency evacuation. There’s quite a few cases now that make it clear that people (tenants and owners) who are deprived of their property rights in a building because of an emergency evacuation order, have a right to be heard after the fact at such a hearing. Most of the time no one actually appears at a hearing or files a notice appealing the order of the fire official. But, in order to meet the requirements of the fourteenth amendment, they must be given the opportunity. By keeping an appropriate record of the hearing or appeal, the local jurisdiction can easily avoid a civil rights lawsuit for depriving an individual of his or her property without due process.
