Construction Law - Frank O. Brown, Jr.
| Publication year | 2011 |
Construction Law
by Frank O. Brown, Jr.*
I. Introduction
This Article focuses on a few noteworthy construction law decisions by Georgia appellate courts between June 1, 2010 and May 31, 2011.1
II. Building Codes
In Lumsden v. Williams,2 the plaintiffs, a home buyer and his wife, sued the home builders alleging that their home had not been constructed in compliance with the International Residential Code (IRC)3 standards.4 The builders moved for summary judgment. The plaintiffs responded with expert affidavits stating that the home failed to comply with the IRC.5 However, the trial court determined that the Council of American Building Officials (CABO),6 rather than the IRC, was the applicable code.7 As urged by the builder, the trial court concluded that the Department ofCommunity Affairs (DCA) had exceeded its authority in adopting the IRC because, while the DCA was authorized to adopt a later edition of the CABO code,8 the IRC was not merely a later edition
* Shareholder in Weissman, Nowack, Curry & Wilco, P.C., Atlanta, Georgia. General Counsel, Greater Atlanta Home Builders Association, Inc. Rhodes College (B.A., 1976); Emory University School of Law (J.D., 1979). Member, State Bar of Georgia.
1. For an analysis of Georgia construction law during the prior survey period, see Frank O. Brown, Jr., Construction Law, Annual Survey of Georgia Law, 62 Mercer L. Rev. 71 (2010).
2. 307 Ga. App. 163, 704 S.E.2d 458 (2010).
3. Georgia State Amendments to the CABO One and Two Family Dwelling Code, Ga. Comp. R. & Regs. 110-11-1-.11 (2002).
4. Lumsden, 307 Ga. App. at 164-66, 704 S.E.2d at 461-62.
5. Id. at 165, 704 S.E.2d at 461.
6. CABO One and Two Family Dwelling Code (1989) [hereinafter CABO Code].
7. Lumsden, 307 Ga. App. at 166, 704 S.E.2d at 462.
8. O.C.G.A. § 8-2-20(9)(A)(ii) (2004).
of the CABO code.9 Because the IRC did not apply and the affidavits from the plaintiffs' experts were premised on its being the applicable code, the trial court struck the expert affidavits and granted the builder summary judgment on the claims of IRC violations.10 These rulings were upheld on appeal.11 The Georgia Court of Appeals noted, however, that nothing in the trial court's rulings prevented the plaintiffs from relying on CABO code violations in support of their remaining claims.12
III. Product-Related Claims
In R & R Insulation Services, Inc. v. Royal Indemnity Co.,13 "a fire occurred in an oven at a chicken processing plant" owned by the plaintiff.14 The plaintiff and its subrogors (collectively referred to as the owner) filed suit for $260 million against the manufacturer of Class C rated fiberglass-reinforced plastic panels (Class C FRP) and the contractor that installed them.15 The owner alleged that the manufacturer failed to appropriately test the Class C FRP in foreseeable end uses, specifically including installations using nylon rivets, which led to misrepresentations by the manufacturer about the products "actual combustibility and flame spread properties" and its mislabeling as a Class C interior finish.16 The owner contended that it relied on the incorrect label when having the Class C FRP installed at its plant and that the mislabeling resulted in the spread of the fire. The owner alleged that the defendant contractor failed to sufficiently warn the owner about the combustibility of the Class C FRP. Also, the owner alleged that the contractor failed either to use metal, rather than nylon, fasteners with the Class C FRP or to select and install Class A FRP instead. The owner contended that these failures resulted in the spread of the fire.17
The Georgia Court of Appeals held that the trial court erred in denying the defendants' motion for summary judgment on the plaintiff's negligence per se claim because, even if the defendants were required by the Life Safety Code to test the Class C FRP in actual end-use conditions, the plaintiff's own expert admitted that the Class C FRP met the
9. Lumsden, 307 Ga. App. at 166, 704 S.E.2d at 462.
10. Id. at 167-68, 704 S.E.2d at 463.
11. Id. at 168, 704 S.E.2d at 463.
12. Id.
13. 307 Ga. App. 419, 705 S.E.2d 223 (2010).
14. Id. at 419, 705 S.E.2d at 228.
15. Id.
16. Id.
17. Id.
Life Safety Code standards for such materials.18 Thus, any failure to test was not the proximate cause of the alleged fire and the associated damage.19 The court of appeals noted that "[a] showing of negligence per se, however, does not establish liability per se. Breach of duty alone does not make a defendant liable in negligence."20
The manufacturer contended that the trial court erred by denying its motion for summary judgment as to the owner's claims that it had "failed to adequately warn of the dangers of installing . . . Class C FRP in ceiling applications with nylon rivets."21 The court of appeals disagreed, reasoning, in part, that it is foreseeable that the public will rely on a manufacturer's recommendations for installation of a product, which, in this case, included recommendations by the manufacturer for the use of FRP using nylon rivets.22 Thus, whether the manufacturer breached a duty to warn of dangers and whether such breach proximately caused the fire damages were jury issues.23 Other jury issues included: whether the owner was a sophisticated user to whom the manufacturer owed no warning,24 whether the manner and speed at which the Class C FRP would burn should have been obvious to the owner,25 and whether the use of FRP with nylon rivets was the proximate cause of the fire.26
The contractor contended that the trial court erred by denying its motion for summary judgment on its alleged failure to warn about dangers of installing Class C FRP with nylon rivets.27 The court of appeals agreed.28 The court held that the contractor had no duty to warn because there was no evidence that the contractor had actual or constructive knowledge that the use of nylon rivets might create a problem.29 The contractor further argued that "the trial court erred by denying its motion for summary judgment as to its alleged failure to suggest installation of Class A FRP or warn against installing Class C
18. Id. at 425-26, 705 S.E.2d at 232.
19. Id. at 425, 705 S.E.2d at 232.
20. Id. at 425, 705 S.E.2d at 231 (quoting Brazier v. Phoenix Grp. Mgmt., 280 Ga. App. 67, 70, 633 S.E.2d 354, 357 (2006)). The plaintiff's counsel also admitted during oral argument that the Class C FRP itself was not the basis for the plaintiff's claims. Id. at
426, 705 S.E.2d at 232.
21. Id. at 427, 705 S.E.2d at 233.
22. Id. at 428, 705 S.E.2d at 234.
23. Id. at 428, 705 S.E.2d at 233.
24. Id. at 428-29, 705 S.E.2d at 234.
25. Id. at 429, 705 S.E.2d at 234.
26. Id. at 429-30, 705 S.E.2d at 234-35.
27. Id. at 430, 705 S.E.2d at 235.
28. Id.
29. Id.
FRP."30 Again, the court of...
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