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.

[Home] [Up] [Mold-Condemned-Home] [Employer Liability] [Home Builder Mold] [Realtor-Mold-Lawsuit] [Lender-Mold-Liability] [Insurance Claim] [Landlord-Tenant-Mold-Questions] [Landlord Liability] [Legal Q & A] [School Mold] [Sell-Mold-House] [Texas Victory] [Texas Mold License] [Homeseller-Mold-Liability] [Building-Inspector-Liability] [Cal Mold Law] [Hotel-Motel-Mold] [Mold-Lumberyard-Victory]