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11 Constr. Law. 3 (1991)
Should Expert Witnesses Be Permitted to Explain, Define, or Otherwise Interpret Building, Safety, and Other Codes and Regulations

handle is hein.journals/conlaw11 and id is 131 raw text is: Should Expert Witnesses Be Permitted to Explain, Define, or Otherwise Interpret Building, Safety, and Other Codes and Regulations? Kevin F. Foley The Situation At trial, you are faced with the applicability of an important safety regulation or code that is subject to two or more reasonable inter- pretations. The resolution of which interpretation applies will determine the outcome of the case. As the lawyer for the defendant, you have hired an expert witness whose qualifications are Kevin F. Foley beyond reproach. Your witness not only holds a Ph.D. in the applicable field, but he also played a large part in the promulgation of the code provision in issue and works with this code on a regular basis. The code provision is extremely technical, and the judge and jury have no experience what- soever in the field. The issue presented is: Should the court allow extrinsic evidence in the form of expert testimony to assist in the interpretation of the code provision? This article does not deal with the admissibility of building, safety, or other codes.' It is limited to the issue addressed, that being the admissibility of expert testi- mony as an aid to construction and interpretation. Both courts and litigants are faced with a labyrinth of statutes, rules, codes, ordinances, and regulations. Sub- stantive regulations have the force and effect of law.2 In addition, codes and regulations may be admissible at trial for various purposes. In negligence cases, depending on the circumstances and the nature of the regulation or code, a violation of such a code or regulation may con- stitute evidence of negligence or negligence per se.3 In the construction context, contractors impliedly warrant that their construction will be in compliance with local building codes.4 A recent Florida case held that a seller of real property has an affirmative duty to advise a purchaser of violations of building and zoning codes; and a failure to do so may constitute fraud.' It is also common for contracts to include provisions that certain things will be done in accordance with applicable codes or regulations. Persons may be subject to disci- plinary proceedings for alleged violations of codes or regulations affecting their professions. The list of occa- sions for coming into contact with rules, regulations, ordinances, and codes is almost endless. As a conse- Kevin F. Foley is a partner of Maguire, Voorhis & Wells, P. A., Orlando, Florida. quence, litigants must be prepared to convince admin- istrative boards, courts, arbitrators, and opposing parties as to the soundness of their positions, which will often entail advocating certain interpretations of statutory or administrative provisions. The number of codes and regulations needs little dis- cussion. The Code of Federal Regulations contains the various regulations promulgated by the numerous fed- eral agencies. Similarly, states have their administrative codes, which carry the administrative regulations pro- mulgated by state agencies. Counties and municipalities have their own ordinances, which often incorporate into them building or other codes issued by regional or na- tional associations. An example of the various incorporation of codes is shown by the building code of Orange County, Florida. Research on the requirements for fire spinkler systems would take a person first to section 6-15 of the Orange County Code, which adopts the 1985 edition of the Standard Building Code with 1986 revisions thereto, published by the Southern Building Code Congress In- ternational, Inc. The Standard Building Code, in turn, incorporates NFPA 13, the Standard for the Installation of Sprinkler Systems, which was prepared by the Tech- nical Committee on Automatic Sprinklers, released by the Correlating Committee on Water Extinguishing Sys- tems, acted on by the National Fire Protection Associ- ation, Inc., and issued by the Standards Council of the NFPA. In other words, although a matter concerning fire sprinklers would seem to be relatively simple, three codes must be referred to in order to obtain the answers sought. Depending upon its size and sophistication, each gov- ernmental agency is made up of people with certain de- grees of expertise. For example, even in the smallest of jurisdictions, a building permit and final inspection are required, and some inspector must apply his expertise to review the plans and specifications to issue the permit, and to provide the final inspection authorizing occupan- cy of the constructed building. In comparison, an agency such as the Environmental Protection Agency may have resources including experts in the fields of chemistry, hydrology, geology, hydro-geology, toxicology, and the like. Irrespective of the size of an agency, the agency will be called upon to read, interpret, and apply whatever codes, regulations, or statutes apply to a given situation. Accordingly, these agencies develop a certain expertise in dealing with these enactments. So too, the world is filled with private consultants and other professionals who are also called upon to read,

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