The position of threshold inspector 1 has its origin in the March 27, 1981 collapse of the then under construction, Harbour Cay Condominium building in Cocoa Beach, Florida. On that day, the five-story flat-plate reinforced concrete building collapsed as concrete was being placed for the roof slab. 2 Eleven workers were killed and twenty-three were injured. 3 The collapse was caused by a combination of design defects, incorrect steel placement, and possible shoring issues. 4
A legislative response to that disaster was the threshold inspector statute, Fla. Stat. § 553.79 (2019) titled, Permits; Applications; Issuance; Inspections. 5 According to the then Chairman of the Florida Engineering Society’s State Constructed Environment Committee, who devised the statute, the contemplated threshold inspections “were to ensure that the construction complied with the permitted drawings.” 6
The focus of this article is the issue of to whom the threshold inspector owes a duty in negligence. The origin of the threshold inspector, the Harbour Cay collapse, could lead one to conclude a duty is owed to anyone who might be injured if a building is constructed improperly. Recent trial court decisions in construction defect cases, however, conclude that the threshold inspector owes a duty only to the (a) permitting authority and (b) development entity/owner with whom it contracts to perform its threshold inspections. 7 Florida trial courts have ruled that a threshold inspector owes no duty in negligence to other third parties, a condominium association, or to a general contractor who relied on the threshold inspector’s inspections.
This article will review the arguments and authorities advanced by both sides of the duty issue based on common law and statutes. 8
Threshold Building Definition and Threshold Inspection Requirement
A “threshold building” is any building that is greater than three stories or 50 feet in height, or that has an assembly occupancy classification as defined in the Florida Building Code that exceeds 5,000 square feet in area and an occupant content of greater than 500 persons. 9 An enforcing agency must require a threshold inspector to perform structural inspections on a threshold building, pursuant to a structural inspection plan prepared by the engineer or architect of record. 10
The purpose of the structural inspection plan is to provide specific inspection procedures and schedules so that the building can be adequately inspected for compliance with the permitted documents. 11 The enforcing agency must approve the structural inspection plan before issuing a permit for the construction of the threshold building. 12
The threshold inspector performs his or her services against the backdrop of
- the Harbour Cay collapse,
- a requirement that his or her services be performed pursuant to an enforcing agency-approved structural inspection plan (the purpose of which is to guide the threshold inspections of the building) to confirm the building is constructed in accordance with the permitted documents; and
- the knowledge that without the threshold inspector’s written confirmation, under seal, confirming that the construction complies, a certificate of occupancy will not be issued.
Requirements to be a Threshold Inspector
A threshold inspector must be “a licensed architect or registered engineer who is certified under chapter 471 or chapter 481 to conduct inspections of threshold buildings.” 13 The licensed architect or registered engineer may have her or his duly-authorized representative perform “inspections provided all required written reports are prepared by and bear the seal of the special inspector and are submitted to the enforcement agency.” 14
The Florida Administrative Code sets forth required qualification for engineers and architects to serve as threshold inspectors. 15 Those requirements include having experience in performing structural field inspections on threshold buildings. The required experience ranges from three to five years, depending on the threshold inspector’s principal practice. For authorized representatives, the Florida Administrative Code requires “four years of Threshold Building inspection training on non-Threshold Buildings performed under the supervision of a Special Inspector who was in responsible charge of the trainee’s work….” 16
Inspections constitute architectural and engineering services. The definition of “Architecture” includes “job site inspections.” 17 “Engineering” includes “inspections of construction for the purpose of determining in general if the work is proceeding in compliance with the drawings and specifications….” 18
Employment of Threshold Inspectors
The fee owner of a threshold building is required to select and pay the threshold inspector. 19 The threshold inspector is however, “responsible to the enforcement agency.” 20 Some have cited that language to argue that a threshold inspector does not owe a duty to the end user of a threshold building or a contractor involved in the construction. They argue that the statute provides an exclusive list of those to whom the threshold inspector owes a duty. The context of this language as well as the case law on statutory construction, however, support an argument that the “responsible to” language was not intended to exclusively define to whom the threshold inspector owes a duty.
Pro-duty advocates argue that such a strict interpretation of the inspector’s duty is inconsistent with the purpose of a statute, which is to prevent a Harbour Cay-like disaster. They further argue this interpretation is contrary to common law that extends liability to third parties for errors and omissions caused by a professional, namely a licensed architect and/or engineer.
Considering its context, the intent of the “responsible to” language may be much more straightforward. The threshold inspector is selected by, is employed by and is being paid by the owner. Given that context, the purpose and intent of this language could be simply to give the enforcement agency authority over the architect or engineer hired by someone else (the owner). Absent the “responsible to” language, what authority would the enforcing agency have over the threshold inspector? What power would the enforcing agency have to require the threshold inspector to follow the threshold inspection plan?
The “responsible to” language does not necessarily preclude or limit other duties owed. Statutory duties will only preempt and supersede common law duties when: (1) the statute expressly states that it eliminates or limits common law rights and duties, or (2) the statutory scheme is so contrary to existing common law duties that it would be repugnant to the statute for the common law to remain in force. 21 Pro-duty advocates argue that the threshold inspector statute neither states that any common law duties or other legal obligations are eliminated or restricted, nor would it be repugnant or even inconsistent for a threshold inspector to have a duty to others alongside his or her duty to the enforcing agency.
The Threshold Inspector’s “Deliverables”
The threshold inspector statute expressly contemplates that the threshold inspector will provide certain deliverables to satisfy his or her obligations. The following are most relevant to this discussion:
- Written reports prepared by and bearing the seal of the threshold inspector. 22
- A signed and sealed statement, to be submitted prior to the issuance of a certificate of occupancy stating substantially:
To the best of my knowledge and belief, the construction of all structural load-bearing components described in the threshold inspection plan complies with the permitted documents, and the specialty shoring design professional engineer has ascertained that the shoring and reshoring conforms with the shoring and reshoring plans submitted to the enforcement agency. 23
The requirement that the threshold inspector apply his or her seal is potentially significant to the duty analysis. Regarding design drawings, the Fourth District Court of Appeal observed that a professional’s use of his or her seal is significant stating:
The requirement that a registered engineer stand behind and be responsible for his structural plans and specifications is no idle precaution; most especially when dealing with a building some 12 stories high. The designer of such structures owes a duty of care not only to the owner of the property but to the public as well. The signing and sealing of such plans fixes the responsibility for assistance during construction and ultimate liability for negligent design. 24
The Florida Supreme Court in Moransais 25 established that construction professionals owe duties to a broad range of parties, including the public at large. The Court rejected the argument that privity or special relationships limited such duties, stating that, “the law imposes a duty to perform… in accordance with the standard of care used by similar professionals in the community under similar circumstances.” 26
Consistent with Moransais, the Fourth District Court of Appeal held that engineers and architects have duties that extend beyond contractual privity. 27 As stated above, a threshold inspector is required to be a licensed architect or engineer. Moransais, at a minimum, suggests Florida jurisprudence supports a determination that a threshold inspector’s duty is not limited to the enforcing agency. The no duty advocates argue however, that the threshold inspector statute must be strictly construed, compelling a conclusion that any duty is solely to the enforcing agency.
The Decisions in Two City, Altman, and 2700 Ocean
Duty is a question of law, but the duty analysis involves an examination of the facts of each case. This is particularly so when the duty is a common law duty “arising from the general facts of the case.” 28 A review of the facts in Two City, Altman and 2700 Ocean is helpful in considering not only whether those decisions further or diminish the goal of the threshold inspector statute but also, whether A.R. Moyer’s 29 “supervision and control” analysis is useful or appropriate in an analysis of a threshold inspector’s duties. 30
Two City involved a negligence claim by a condominium association against a threshold inspector. The negligence alleged was that the inspector did not adequately inspect the work. The threshold inspector argued it had no duty to the association because (a) the threshold inspector statute says the inspector is responsible to the enforcing agency and (b) the threshold inspector did not create, in the words of the trial court, “the risk in question.” 31
The trial court entered summary judgment in favor of the threshold inspector. The order granting summary judgment stated in part: (a) “the [threshold inspector] inspected the construction work in question and did not, therefore, create the risk in question” 32 and (b) “the language of section 553.79 (5) (b), Florida Statutes, … identifies to whom a special inspector owes its duty(ies).”
Altman involved a general contractor’s negligence claim against a threshold inspector. The alleged negligence was a failure to properly inspect the placement of rebar in balconies under construction. If the threshold inspector did not approve the placement of the rebar, the balcony could not have been poured. A number of the balconies had defects related to improper placement of the rebar. Some balconies had to be removed and replaced. Others required extensive repairs. The general contractor undertook those repairs and bore the associated cost.
The threshold inspector moved for summary judgment. The inspector contended, in sum, that it did not owe a duty of care to the general contractor. The inspector made an A.R. Moyer based argument that a design professional owes a duty of care to a general contractor only if the design professional has the authority to supervise, control and stop the general contractor’s work. The inspector also relied on the Two City order to argue that the threshold inspector owes a duty of care solely to the building official.
The trial court granted summary judgment in favor of the threshold inspector. 33 The Altman order does not provide the trial court’s analysis or explain how it reached its conclusion. However, it is reasonable to assume that the court found that the inspector did not have a duty based on (a) AR Moyer factors, (b) the language of the statute, or (c) both.
2700 Ocean also involved a negligence claim by a condominium association against a threshold inspector. The association alleged that the inspector failed to properly inspect the work. The threshold inspector moved for summary judgment. It argued that it had no statutory, contractual or common law duty to the association. The threshold inspector relied on the Two City and Altman orders as support for its motion for summary judgment.
The 2700 Ocean court sided with the threshold inspector and granted its motion. The court’s order stated in part, “[s] ee § 553.79(5)(b).” The court’s citation indicates that the court concluded the “responsible to” language limits a threshold inspector’s duty to only the enforcing agency. That subsection provides in part, “[t]he fee owner of a threshold building shall select and pay all costs of employing a special inspector, but the special inspector shall be responsible to the enforcement agency. (Emphasis added)
Is the AR Moyer Analysis Appropriate for Determining the Duty of a Threshold Inspector?
It has been said that “A.R. Moyer is the leading case governing the liability of a supervising architect.” 34 Insofar as relevant to this discussion, in A.R. Moyer, the Florida Supreme Court held that a general contractor may maintain a negligence action against a supervising architect notwithstanding the absence of privity. Central to the court’s analysis and decision was the control the supervising architect had over the general contractor. One must at least ponder, whether A.R. Moyer — a case involving the duty of an architect to a general contractor — has any application to the analysis of a threshold inspector’s duty, whether to a general contractor or the ultimate occupants of a threshold building. The conclusion that it does not, seems to be bolstered by the Spancrete decision.
In Spancrete, Florida’s Third District Court of Appeal noting that A.R. Moyer had been limited strictly to its facts 35, ruled “the duty of care there recognized [i.e., the duty of a supervising architect to a general contractor] does not extend to a subcontractor.” 36 If the duty examined in A.R. Moyer could not even be extended to a subcontractor, one must question whether the A.R. Moyer analysis is appropriate for analyzing the duty of a threshold inspector.
It is fair to say that A.R. Moyer turned on the architect being a supervising architect and having control over the general contractor in the performance of its duties. Fair to say that the threshold inspector statute does not expressly grant the threshold inspector the power to supervise 37 or control the general contractor. Equally fair to say however, that the threshold inspector statute does empower the threshold inspector to withhold his or her required certification which is required for the threshold building to receive a certificate of occupancy. In other words, the threshold inspector controls whether the threshold building can be occupied. 38
Control and supervision of the general contractor are not required for the threshold inspector to fulfill his or her duties. It therefore bears consideration whether control and supervision should dictate the parameters of a threshold inspector’s duties. Doing so creates a scenario where an owner could simply include in an owner/threshold inspector agreement than the threshold inspector would not have the duty to supervise or control the general contractor. The result could be (although the author submits should not be) to contract away any duties.
This is not to say that where a threshold inspector does supervise or control a general contractor, liability will not result under A.R. Moyer. It is only to say that the A.R. Moyer analysis may not be the best way to examine a threshold inspector’s duties.
Does The Threshold Inspector ‘Create’ Any Risk?
Relying on McCain, 39 the no duty advocates maintain the threshold inspector does not create a foreseeable zone of risk and has no duty. In McCain, the plaintiff was electrocuted when he dug in an area which had been negligently marked by an employee of Florida Power. By analogy to a threshold inspector’s report that inaccurately reports a threshold building has been constructed in accordance with the permitted documents, the Florida Power employee inaccurately reported (marked) where it was safe to dig. The Florida Supreme Court upheld a verdict against Florida Power. The court stated in part, “[t]he duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others.” 40
It would seem self-evident, if for no other reason than his or her reports must be under seal, that a threshold inspector has a duty to use reasonable care in inspecting and reporting the condition of the threshold building.
The issue is whether that duty should run to those who could foreseeably be harmed if the duty is breached, or only to the enforcing agency who will issue a certificate of occupancy in reliance on the inspections and reports.
Of course, the threshold inspector does not construct or create the building he or she is inspecting, unlike Florida Power who constructed/created the power generating equipment and distribution system in McCain. Like the inaccurate marking (reporting) of the underground electrical cables however, when the threshold inspector negligently inspects and then inaccurately reports the condition of the building, it has in effect created a foreseeable zone of risk — a building that will be occupied. Absent the inspector’s certification, the building would not be occupied. Stated differently, absent the threshold inspector’s report confirming the building was constructed in accordance with the permitted plans, the zone of risk would be much narrower because the building would not be occupied.
Does Trianon 41 Preclude A Common Law Duty?
The argument has been made that Trianon precludes the existence of a common law duty on the part of a threshold inspector. The argument appears to presume that a threshold inspector should be treated the same way as a government entity would be treated for the actions of its building inspector. That position does not appear to be totally consistent with the holding of Trianon or the language of the threshold inspector statute.
In Trianon, the court answered in the negative the certified question: “Whether a governmental entity may be liable in tort to individual property owners for the negligent actions of its building inspectors in enforcing provisions of a building code enacted pursuant to the police powers vested in that governmental entity.” 42 The Trianon holding would appear to be limited to governmental entities. The threshold inspector statute provides in part: “[t]he [threshold inspector] may not serve as the surrogate in carrying out the responsibilities of the building official….” 43 It is not clear that either Trianon or the threshold inspector statute support the treatment of a threshold inspector like a government entity.
The Undertaker Doctrine
Threshold inspectors are not drafted. Rather, for a fee they undertake to perform the inspections and provide the reports contemplated by the threshold inspector statute. While in Trianon, the Florida Supreme Court observed, “…there is not now, nor has there ever been, any common law duty for either a private person or a governmental entity to enforce the law for the benefit of an individual or a specific group of individuals,” the Court has also approved the undertaker doctrine.
In Clay Electric,44 the court commented on the doctrine: [w]henever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service—i.e., the “undertaker”—thereby assumes a duty to act carefully and to not put others at an undue risk of harm (cite omitted). This maxim, termed the “undertaker’s doctrine,” applies to both governmental (cite omitted) and nongovernmental entities (cite omitted). The doctrine further applies not just to parties in privity with one another—i.e., the parties directly involved in an agreement or undertaking—but also to third parties. Florida courts have applied the doctrine to a variety of third-party, contract-based negligence claims and ruled that the defendants could be held liable, notwithstanding a lack of privity. 45
Clay contracted to maintain streetlights. A fourteen-year old was struck by and killed by a vehicle in an area where a streetlight was inoperative. 46 Citing McCain, the court held that a duty arose under the general facts of the case and that Clay owed a duty to Plaintiff. 47
A threshold inspector undertakes to perform the services required by the threshold inspector statute. It has a duty to exercise reasonable care in doing so. Clay contracted to maintain streetlights. Like the threshold inspector who does not build (create) the building he or she inspects, Clay did not install the streetlight. Clay undertook to maintain the streetlight just as the threshold inspector undertakes his or her duties. The court noted that Clay’s negligence increased the risk that the driver would be unable to see child who was killed. Clay would appear to support the pro duty argument that a threshold inspector who fails to use reasonable care and certifies that a building is constructed in accordance with the permitted plans when in fact it is not, has increased the risk of harm resulting from a defect in the building.
Conclusion
The threshold inspector statute creates a new paradigm, the duty aspect of which may require a different analysis than what has been applied to date or at least more flexible reading of cases like A.R. Moyer or McCain to measure the inspector’s duty. That the Harbour Cay tragedy was the impetus for the threshold inspector statute, and the requirement that only an engineer or an architect can act as a threshold inspector, would suggest a broader duty than the no duty advocates suggest. That the threshold inspector has the power to withhold his or her report and thereby prevent the issuance of a certificate of occupancy would seem to be more than enough control to warrant the duty the pro duty advocates maintain is appropriate. The courts will need to decide what interpretation and application of the threshold inspector statute furthers the public safety purposes of the statute.
Endnotes
- Perhaps more precisely referred to as a ‘Special
Inspector who performs inspections on threshold
buildings.’ For economy of words, the author uses the term threshold inspector. - W. Gene Corley, SE, PE, PhD, CASE STUDY: Collapse of Harbour Cay Condominium,
Cocoa Beach, Florida. Structural Engineering Institute of the American
Society of Civil Engineers. - Id.
- John Pistorino, SE, SI, Potential Liabilities Facing Threshold Building Inspectors.
Florida Board of Professional Engineers, July 2020 Newsletter. - Referred to herein as the “threshold inspector statute.”
- John Pistorino, SE, SI, Potential Liabilities Facing Threshold Building Inspectors.
Florida Board of Professional Engineers, July 2020 Newsletter. - 7wo City Plaza Condo. Ass’n, Inc. v. Kolter City Plaza, II, Inc., Case No, 2016-
CA-011149 (Fla. 15th Cir. Ct. January 24, 2019) (hereinafter, “Two City”); Altman
Glenewinkel Constr., LLC v. Orange and Blue Constr., Inc., et.al., Case. No. 50-
2017-CA-001280 (Fla. 15th Cir. Ct. December 26, 2019) (hereinafter, “Altman”);
and 2700 North Ocean Condo. Ass’n, Inc., v. Singer Island Condominiums,
Ltd., et. al., Case. No. 50-2014 CA-010718 (Fla. 15th Cir. Ct. February 25, 2020)
(hereinafter, “2700 Ocean”). - The author represented the party on the losing side of the trial court
duty decision in the 2700 Ocean matter. That decision was appealed, but the
Fourth District Court of determined that the appeal was premature, apparently
because crossclaims that remained pending against the threshold inspector. - Fla. Stat § 553.71(12) (2019); 7 Fla. Jur. 2d 49, Prerequisite to issuance of
permit- Threshold Buildings. - Fla. Stat. § 553.79(5)(a) (2019); 7 Fla. Jur. 2d 49, Prerequisite to issuance of
permit- Threshold Buildings. “Local enforcement agency” means an agency of
local government, a local school board, a community college board of trustees,
or a university board of trustees in the State University System with jurisdiction
to make inspections of buildings and to enforce the codes which establish
standards for design, construction, erection, alteration, repair, modification,
or demolition of public or private buildings, structures, or facilities. Fla. Stat. §
553.71(5) (2019). - Fla. Stat. § 553.79(5)(a) (2019).
- Id.
- Fla. Stat. § 553.71(9) (2019).
- Fla. Stat. § 553.79(5)(d) (2019).
- Fla. Admin. Code 61G15-35.003 and 61G1-25.003.
- Fla. Admin. Code 61G15-35.004 (2)(e). The Rule also provides as alternatives
certifications from the American Concrete Institute, the International Code
Council, the Post-Tensioning Institute and the American Institute of Steel
Construction as applicable to the type of inspections being conducted. - Fla. Stat. § 481.203(6) (2019).
- Fla. Stat. § 471.005(5) (2019).
- Fla. Stat. § 553.79(5)(b) (2019).
- Id.
- Major League Baseball v. Morsani, 790 So. 2d 1071, 1078 (Fla. 2001); Jax
Utilities Mgmt., Inc. v. Hancock Bank, LLC, 164 So. 3d 1266, 1271 (Fla. 1st DCA
2015). - Fla. Stat. § 553.79(5)(d) (2019).
- Fla. Stat. § 553.79(7)(a) (2019).
- O.P. Corp. v. Lewis, 373 So. 2d 929, 931 (Fla. 4th DCA 1979) (emphasis added).
- Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999).
- Id. at 975-976.
- See e.g. Trikon Sunrise Associates, LLC v. Brice Building Co., Inc., 41 So. 3d 315,
318 (Fla. 4th DCA 2010) (professional rendering professional services has duty
of care which extends to third-party landowner with whom professional had
no direct relationship); Hewitt-Kier Constr., Inc. v. Lemeul Ramos and Associates,
Inc., 775 So.2d 373, 375 (Fla. 4th DCA 2000) (contractor not in privity with architect
could maintain negligence claim against architect who drew plans for
contractor’s client). - McCain v. Florida Power Corp., 593 So. 2d 500, 505 Fn. 2 (Fla. 1992) (hereinafter,
“McCain”) (describing the four different sources of duties and citing the
Restatement (Second) of Torts. McCain is a favorite of the no duty advocates.
They argue that it precludes a duty because the threshold inspector does not
create “a foreseeable zone of risk” because the inspector did not ‘create’ the
defective work. Pro-duty advocates argue that it is beyond legitimate dispute
that the threshold inspector creates the risk of a building with defects being
occupied when the inspector issues its report under seal stating that building
has been constructed in accordance with the permitted plan, when in fact,
that is not the case. The author submits that McCain’s “creates,” like A.R. Moyer’s
“supervision” and “control” (infra, Note 29), at least as those terms are used in
those cases, may not be terribly helpful in analyzing the duty of a threshold
inspector. - A.R. Moyer v. Graham, 285 So. 2d 397 (Fla. 1973) (hereinafter, “A.R. Moyer”).
- Significantly, the Florida Supreme Court has limited the holding in A.R.
Moyer to the facts of that case. Casa Clara Condo. v. Charles Topino & Sons, Inc.,
620 So. 2d 1244, 1248 (Fla. 1993) (hereinafter, “Casa Clara”). A.R. Moyer did not
involve a threshold inspector, much less the question of to whom a threshold
inspector owes a duty. - See, Two City, supra Note 7, “Order on Ardaman and Associates, Inc’s Motion
for Partial Summary Judgment,” at para. 5., presumably referring to the risk of
injury resulting from defective work performed by others. - Emphasis added.
- The ruling is under appeal.
- Spancrete, Inc., v. Ronald E. Frazier & Associates, P.A., 630 So. 2d 1197 (Fla. 3rd
DCA 1994) (hereinafter, “Spancrete”). - See, Casa Clara, supra Note 30, at. fn.9. where the Florida Supreme Court
limited A.R. Moyer “strictly to its facts.” - Spancrete, supra Note 34, at 1198.
- “Supervise” is defined as “to be in charge of.” https://www.merriam-webster.
com/dictionary/supervise - Of course, it is the permitting authority that makes the ultimate decision of
whether to issue a certificate of occupancy. However, that may not dispositive
of the duty issue. See, Garce and Naeem Uddin, Inc., v. Singer Architects, Inc., 278
So. 3d 89, 93 (Fla. 4th DCA 2019) (observing that even though an architect did
not have absolute authority to stop the work, it had the authority to recommend
work stoppage, was relevant to the issue of supervisory control). - McCain, supra, Note 28.
- Id., at 503. (internal quotes in original).
- Trianon Park Condominium Assoc., Inc. v. City of Hialeah, 468 So. 2d 912 (Fla.
1985). - Id. at 914.
- Fla. Stat. § 553.79(5)(a) (2019). “Surrogate” has been defined as “one appointed
to act in the place of another: Deputy.” https://www.merriam-webster.
com/dictionary/surrogate - Clay Electric Cooperative, Inc. v. Johnson, 873 So. 2d 1182 (Fla. 2003), (rehearing
denied 2004). - Id. at 1186. The court also cited to Section 324 A of the Restatement (Second)
of Torts § 342 A (1965) which is in accord on liability to third persons. - Id. at 1184.
- Id. at 1185.
This article was originally published in the Fall 2020, issue of ActionLine, a Florida Bar Real Property, and Trust Law Section publication.