Is trial looming close and are you thinking to yourself who is going to make the best expert for interpretation of the Florida Building Code on that construction defect case? Guess what? You don’t need an expert. In fact, it would be improper for the court to allow this type of testimony other than in very limited circumstances for very limited purposes. Construction litigation frequently requires fact finders, whether judges, juries or arbitrators, to determine whether there has been a violation of the Florida Building Code as an ultimate issue in causes of action for statutory violations of the Code, negligence of contractors and professional negligence of design professionals. This might leave some practitioners scratching their head pondering how they will prove that a violation of the Code may or may not have occurred in a given case. The following is a discussion of why expert testimony regarding the proper interpretation of the Code is improper and the solution to this seemingly perplexing problem. This doesn’t mean that you don’t need an expert for any issues dealing with whether or not there has been a violation of the building code, but it is important to realize the proper use of expert testimony for building code issues.
Section 553.70, et seq., Florida Statutes, known as the Florida Building Codes Act, provides for the uniform adoption, updating, amendment, interpretation and enforcement of the Florida Building Code. The Florida Building Code is a set of documents that apply to the design, construction, erection, alteration, modification, repair or demolition of public or private buildings, structures or facilities. § 553.72(1), Fla. Stat. Section 553.73(1)(a), Florida Statutes, requires that the Florida Building Code be adopted by rule into the Florida Administrative Code. Specifically, Rule 61G20-1.001(1), Florida Administrative Code, adopts the Florida Building Code, 5th Edition (2014), as updated by the Florida Building Commission, as the building code for the State of Florida and incorporates it by reference into the rule. Accordingly, the Florida Building Code is a regulation that forms a part of the Florida Administrative Code, and it is authorized by the Florida Building Codes Act. Several reported cases have examined the proper interpretation of the building codes, and the following are brief accounts of two such cases.
In Edward J Seibert, A.I.A., Architect and Planner, P.A. v. Bayport Beach and Tennis Club Assoc., Inc., 573 So. 2d 889, 891 (Fla. 2d DCA 1990), the appellate court reviewed a jury verdict against an architect for violation of a building code. In rendering the verdict, the jury was allowed to rely on expert testimony regarding the interpretation of the building code in question. Id. Juries are allowed to rely on expert testimony if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence, or in determining a fact in issue. §90.702, Fla. Stat. Moreover, the admission of expert testimony has been allowed to describe the character of an object in order to determine if it complied with a statute, ordinance or code. Seibert, 573 So. 2d at 891. However, the court held that allowing the jury to consider expert testimony regarding the interpretation of the building code was error because an expert should not be allowed to testify regarding questions of law including interpretation of the building code. Id. at 891-92. The court further held that “[i]t was the duty of the trial court to interpret the meaning of the code and instruct the jury concerning that meaning.” Id. at 892. The appellate court reversed, concluding that the trial court erred not only in submitting a question of law to the jury, but also under the facts at issue, by not directing a verdict in favor of the architect.
In Lindsey v. Bill Arflin Bonding Agency Inc., 645 So. 2d 565 (Fla. 1st DCA 1994), the appellate court reviewed a summary judgment entered by the lower court in a slip and fall case involving the interpretation of the building code. The lower court, in arriving at its decision granting summary judgment, considered the affidavit and deposition testimony of the Division Chief of Building and Zoning in order to assist in interpreting the applicable building code. Id. at 568. The appellate court held that expert testimony regarding the meaning of the building code is not appropriate when the disputed language consists of “ordinary words susceptible of being given plain effect consistent with their ordinary meaning.” Id. (quoting T.J.R. Holding Co., Inc. v. Alachua County, 617 So. 2d 798, 800 (Fla. 1st DCA 1993). The court further held that the interpretation of a building code presents a question of law for the court as opposed to a question of fact for the jury. Id. (citing Edward J Seibert, A.I.A., Architect and Planner, P.A. v. Bayport Beach and Tennis Club Assoc., Inc., 573 So. 2d 889, 891 (Fla. 2d DCA 1990). The court did note that expert testimony might be relevant and helpful to the court where the building code contains words of art or scientific or technical terms, but the testimony cannot dictate the court’s ultimate interpretation of the law. Id. Because the lower court improperly considered the expert testimony regarding interpretation of the building code, the appellate court reversed the lower court’s summary judgment. Id.
Based on these two cases, it is clear that expert testimony is improper for guiding the court in the proper interpretation of the Florida Building Code. The interpretation of the Florida Building Code is a question of law that the court must decide, and in the case of a jury trial, the court must instruct the jury on the proper interpretation of the Code. On the other hand, counsel may assist the court in its interpretation of the Code through legal argument. See, e.g., Lee County v. Barnett Banks, Inc., 711 So. 2d 34, 34 (Fla. 2d DCA 1997). As noted above, this doesn’t mean that expert testimony can’t be helpful in matters involving the interpretation of the Florida Building Code. Sections of the Florida Building Code may use terms of art or other technical terms where expert testimony may be insightful for the court in understanding and properly interpreting the Code. Ultimately, however, the court must interpret the Code for itself or the jury. Expert testimony may also be useful to describe the character of some building feature or design feature addressed by the Code. This testimony can be considered by the court or the jury not in the interpretation of the Florida Building Code, but instead, in its factual determination of whether the Code has been violated or satisfied based on the alleged character of the feature. Expert testimony can be very persuasive, and accordingly, it is important to be prepared not only for defending against its use in interpreting the Code, but also that it should not be allowed in the event you are planning on using it for that purpose.