Liability Insurance Building
Inspector
Building Inspector Liability
City of Fargo [North Dakota]
fights paying
house claim
By Janell Cole, The Fargo [North
Dakota] Forum
Published Thursday, April 29, 2004
BISMARCK – Gary and Rhonda Ficek thought they'd found a great house to
raise their three growing sons.
With Fargo's Elephant Park and tennis courts directly behind 1831 3rd St.
N., Gary Ficek said Wednesday the home was "an absolutely dream location"
when they found it in 1996.
By 2002, the house was falling down. It was heaving and settling in
different directions. It leaked, causing mold to move in. Rafters had pulled
apart from the roof beam, inviting squirrels to nest in the rafters. Experts
warned them the house was so unsafe they should get out. They did. And they
sued.
Last year, a Cass County jury awarded the Ficeks $323,000 after finding
Fargo and the previous homeowners at fault.
Jurors agreed the previous owners had negligently remodeled the house and
Fargo building inspectors had approved it in the course of more than 40
visits.
The two-story home, with 2,952 square feet, and the land it sits on were
appraised at $168,300 in 2003. The proposed appraisal of the land and home
this year is $22,500, which is entirely comprised of the land's value.
The Ficeks have not lived in the home for two years.
The couple who'd remodeled and sold the house, James and Carole Morken,
paid the Ficeks $107,000 for negligence, $56,000 for mental distress and
punitive damages and tens of thousands more for the costs of the lawsuit.
James Morken, a West Fargo developer, could not be reached for comment at
his home Wednesday evening.
Fargo has resisted paying the $133,000 the court says it owes the Ficeks.
It appealed to the North Dakota Supreme Court Wednesday, arguing that city
building codes and inspections are only for the "general public." They're
"not for the specific benefit of an individual."
A building permit and approval for occupancy "does not make a
municipality an insurer against defective construction," the city argues in
its court briefs. Fargo's attorneys want the justices to order a new trial
or declare judgment in the city's favor.
The city's attorney, Patricia Roscoe, said that if the justices let the
jury's verdict stand, "every building inspector has now become a project
manager."
She said, "When a building inspector goes out, he's there for a snapshot
in time."
The justices seemed skeptical.
"Then why bother sending the building inspector out?" Justice William
Neumann asked during Wednesday's arguments. "Is that a meaningless act?"
The Ficeks' lawyer, Ron McLean, said Fargo officials admitted during the
trial that the house does not meet building codes. Among other problems, a
large part was built on concrete piers not dug below the frost line as
required.
"The city's building inspector candidly admitted that he 'just missed it'
with respect to approving the foundation on this building," McLean wrote in
his brief.
Justice Dale Sandstrom wondered if upholding the jury's verdict could
create a situation in which a city is found responsible for a business' loss
if a police officer fails to notice a broken lock on the back door of a
store and thieves subsequently make off with property.
The Ficek case has frightened the North Dakota League of Cities and the
International Code Council, which develops model building codes. Both groups
submitted friend-of-the- court briefs. The groups, along with Fargo
officials, argue that if the Ficeks prevail, it would create a huge cost for
cities and excessive delays in future building.
They want North Dakota's high court to give them the benefit of the
"public duty doctrine," which says cities have a duty to the public at large
and not to individuals.
"Without the doctrine, cities would have to provide round-the-clock
inspection of all building projects or end up serving as insurer for all
errors made by the builder," the league argued in its brief.
Read
Mold Legal Guide
as an in depth introduction to both
sides
of the key mold legal issues and of the essential claims and defenses
in
mold lawsuits.
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