Frick Building Accident Highlights Need for Diligent Compliance with City Code

The recent accident at the Frick Building in Pittsburgh, where a 1,400 pound piece of granite façade fell more than 21 stories and landed on the normally busy intersection of Grant St. and Forbes Ave., highlights the need for compliance with an often overlooked requirement of the City of Pittsburgh Building Code (Code). As previously discussed in a 2014 article, commercial property owners, buyers, landlords and tenants should be aware that the Code requires building owners to conduct periodic inspections of building facade exteriors in the City. Many building owners may not be aware of this Code provision, or in compliance with the mandated five-year inspection plan.

Like many other cities such as Philadelphia and Harrisburg, the City of Pittsburgh adopted the Uniform Construction Code and its family of codes, including the International Property Maintenance Code (IPMC). The Code specifically adopts the IPMC 2003 edition with modifications that, among other things, require regular building facade inspections by a licensed engineer or architect:

"304.1.1 Required Inspections: All buildings and structures except [residential buildings], shall be inspected by a licensed professional engineer or registered architect to determine the structural soundness of items covered in Sections 304.8, 304.9 and 304.11, and their reports shall bear their signature and seal. All inspections made prior to the adoption of this code shall continue on their previous schedule at five year intervals. All new inspections shall be completed within one year of the adoption of this code and successive inspections shall be made every fifth year after the date of the original inspection."

Code of Ordinances, City of Pittsburgh, Pennsylvania § 1004.02. The inspection items covered in IPMC Sections 304.8, 304.9 and 304.11 include a building's decorative features (cornices, belt courses, terra cotta trim, etc.), overhang extensions (canopies, marquees, signs, metal awning, fire escapes, etc.), chimneys, cooling towers and smoke stacks. The Code's facade inspection provision does not specify the required contents of the engineer or architect's inspection or report and there is no apparent requirement to submit the reports to Pittsburgh's Bureau of Building Inspection. Monetary fines may be imposed upon conviction for noncompliance, with $1,000 fines for each offense. Id. at § 1001.10. Each day the City deems a continuing violation can result in an additional $1,000 fine. According to the City of Pittsburgh Department of Permits, Licenses and Inspections, the Frick Building was in compliance with the Code.

The Frick Building incident, however, implicates another potential serious consequence for violation of this section of the Code, beyond the fines that might be imposed. Luckily, the 1,400 pound piece of granite fell early on a Sunday morning and there were no reported injuries. But if a building was in violation of the Code, and the failure of a facade resulted in injuries, the property owner may find itself in a very precarious legal situation. That’s because a violation of the Code might constitute "negligence per se" by the building owner if a negligence or wrongful death action was brought by someone injured in an accident. "The concept of negligence per se establishes the elements of duty and breach of duty where an individual violates an applicable statute, ordinance, or regulation designed to prevent a public harm." Schemberg v. Smicherko, 85 A.3d 1071, 1074 (Pa. Super. Ct. 2014). Thus, even if a building owner could show that he took reasonable care to maintain the facade, his breach of duty to a passerby could be conclusively shown if he failed to comply with the five year inspection requirement of the Code.

Because there are no de minimus exceptions to the rule, any commercial building containing one of the above-referenced structures is subject to the Code provision. Consequently, owners of any commercial buildings in Pittsburgh containing one of these installations should verify that their buildings are in compliance with the five year inspection requirement. If buying a commercial building, a prospective buyer should consider requiring the seller to represent in the sales agreement that the seller is in compliance with the Code's façade ordinance and with other local inspection requirements. This might include a representation and warranty from the seller stating when the last inspection was performed and requiring inclusion of the inspection report in due diligence materials. In the leasing context, commercial landlords and tenants may benefit from clarifying in their leases whether maintenance of the façade features covered by the Code's facade ordinance is the landlord or tenant's responsibility and who is responsible for the inspection costs.