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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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