What are the potential liability issues associated with deck structures? Collins & Lacy attorney and Chair of our Retail and Hospitality Practice Group, Christian Stegmaier, has our special guest, Glenn Stewart, Associate Chief Engineer with Engineering Design & Testing Corp. Listen here.
Michael Burney: Welcome to The Legal Bench. I’m Michael Burney, Director of Business Development at Collins and Lacy Law Firm in Columbia, South Carolina. What are the potential liability issues associated with deck structures? Collins and Lacy attorney and chair of our retail and hospitality group, Christian Stegmaier, has our special guest.
Christian Stegmaier: Glenn Stewart is an associate chief engineer with Engineering Design & Testing Corp. and is domicile in their Columbia, South Carolina district office. Glenn provides specialized consulting in the areas of construction evaluation, damage assessment, engineering design, safety consultation, and loss evaluation. Since joining ED&T in 1993, Glenn has been involved in matters varying in scope and complexity and has provided technical testimony in litigation matters. He has a bachelor’s degree in civil engineering from North Carolina State University and a Master of Engineering degree from Clemson University. He is a licensed professional engineer in multiple states including South Carolina. Glenn and his wife Kathy make their home in Lexington, South Carolina. Glenn, welcome to our podcast.
Well, the reason why I had invited you on, I was perusing LinkedIn late last week and I had seen that you had put some content out there about decks and decks being in code, and I can share with you that in the years that we have been defending cases in our retail and hospitality practice group, we’ve had a multitude of cases that we’ve been involved in where decks have been an issue and of course when something happens involving a deck the first question a client may ask and typically does ask is was our deck, especially as it relates to the railings, was it in code compliance. So, your article was super apropos based on our experience in retail and hospitality, so let’s just talk a little bit more about that. Talk a little bit about your article and what you want to say about decks and code compliance.
Glenn Stewart: Sure, first Christian, I want to thank you for the opportunity and thank Collins and Lacy the opportunity to speak on this podcast. It’s a new experience for me and I’m looking forward to it. So, to kind of give you some background, I work for Engineering Design & Testing and we have a national footprint and our website is edtengineers.com. Weekly we try to put out technical content and so it’s meant to be something that can be read in a few minutes but to be informative. Over the years I’ve worked with matters involving decks and railing and those types of things and I’m often asked that very question, does this balcony railing meet code. I guess fortunately or unfortunately usually the answer is it depends and often times it depends of when it was constructed, where it’s located, those types of things, and so there’s three basic things that you can find in the building code that are related to balcony railings. First is the configuration of the railing. There are variations on the height requirement depending on where it is, what’s it used for, and when it was constructed. Typically, today’s code is that requirement is 42”. Generally speaking, in commercial applications that hasn’t changed much over the years. Another area that’s as far as where you put the railings. Generally you want to put railings at what’s referred to as wall openings typically or the edge of a balcony, so when you walk out on a deck, we are getting into the summer season, it’s day before Memorial Day and people are thinking about taking vacations, so often there are patios and balconies around the outside. There’s historically code requirements to have those railings around those objects at a height of 42”. So those are two of the important areas the configuration, where to install them. And the third one would be what’s the structural capacity. With the structural capacity the design requirements are that they be capable of withstanding a couple of load combinations or load conditions. One is a point load of 200 lbs. in any direction. I’m a pretty big guy; I weight 250 lbs., so does that mean that a guardrail shouldn’t hold me. That’s not necessarily the case. We’ve done some testing in the past that it’s pretty hard to pull 250 lbs. on a railing. If you think about it, it’d be like having a rope and trying to lift something up that’s 200 lbs. So, 200 lbs. is pretty strict requirement and then the second requirement is a linear 50 lbs. per linear foot. So those, generally speaking, are some of the basic requirements that you find in the code.
CS: So when we talk about the code or what the standard is, what typically governs specifically?
GS: Again, and I hate to say this, it depends. So, there are, the building code that is typically enforced nationwide now is the International Building Code. I’m old enough to remember when there were numerous model codes. Here in the south we use the Southern Building Code and the Standard Building Code. In fact, in South Carolina up until around the year 2000, we didn’t have a statewide building code, so you would have a situation where the City of Florence would incorporate the code and the county wouldn’t. The state government essentially dictates to local jurisdictions that they are to implement the building code and so that’s the International Building Code. Currently, that edition is 2018. For our listeners that are interested in this just do a web search 2018 International Building Code and you can read some of these requirements were talking about here. That’s basically how it’s incorporated. Now, it becomes an issue when we’re evaluating an older building like you may have had to evaluate within the hotel and hospitality industry. The requirements for that handrail or that guardrail, they go back to when the building was constructed.
CS: So you just hit a really interesting point about a lot of clients of ours will focus on whether it’s hotel client or condominium or apartment complex where it’s an older structure maybe it was built in the 70s or 80s, there have been several different owners, an owner at this point and time is our client, will have the question about if the railing is less than, for example, 42”, are we under some sort of compulsion to retrofit the entire building to bring it up to current code. I know we can’t talk about specificities obviously, but generally speaking what is a general guidance about where you as an owner have bought a structure where the railings might be less than 42”, is there such a thing as grandfathering. Everybody gets focused on that a lot of times. What is typically the guidance that would be given by an engineer?
GS: So grandfathering is one of those terms that everybody’s aware of and you can’t find it in the code, so that’s …
CS: That’s exactly right! (Laugh)
GS: But it’s a real thing that you don’t necessarily have the responsibility if you purchase a building to hire an architect or engineer or contractor to inspect the building and bring your building up to today’s current code. That’s typically not required. The way the codes are written for existing buildings is to essentially maintain that structure in the condition it was when it was design and constructed to begin with. Now, there is kind of an important thing to keep in mind. In South Carolina they have certain international codes that are required for municipalities to incorporate and then they have other international codes that they allow municipalities to incorporate and one of those is that a jurisdiction is allowed to incorporate is the International Property Maintenance Code and so, usually that code speaks to maintaining things with structural integrity and a proper state of repair, those types of things, so I would, for example, not every municipality or jurisdiction in South Carolina identifies that code but many of the metropolitan areas do. For example, Columbia does. So that may be if a property owner has something that looks funny to them that may be a place they start before they even engage somebody to see what’s required or what they believe is to be required from that document.
CS: And that’s something that we’ve experienced where we have clients with multiple properties in South Carolina that are in different counties and different municipalities. We’ve always related to them just based on our understanding and consulting with experts along the way that no two cases are necessarily exactly the same and every case is different to where if you have a property in Hilton Head with regard to code compliance it might be different than what it is in Florence or Greenville. I guess it’s fair to say in those circumstances if there’s any ambiguity, a property owner would be wise to consult with an engineer just to make sure that there is code compliance.
GS: Yeah, that’s for sure, even the building official I think is worthwhile. It is an important point to make that there not necessarily required to make their 100-year-old building and make it compliant with 2018 building code requirements.
CS: So building off of that though, is it fair to say that if you buy a property and you decide you’re going to do this for fresh, and you often see this in the hospitality side where a hotel gets reflagged as a different concept by a different owner and they are doing whatever they’re doing to the building to where maybe their taking it down to the studs, that if they’re taking the railings off the hotel rooms that whatever they put back on is a retrofit or an update, that new railing would have to be in code compliance. Is that generally the rule?
GS: Yes. It’s also important that, a lot of times you’ll have a triggering event. And so, a triggering event might be an occupancy change. I’ve got this really nice Victorian home that I’m going to turn into a bed and breakfast, so that’s an occupancy change. So that may trigger some of these requirements for new construction.
CS: That’s a fantastic point. So let’s turn to topics just a little bit, we’re still going to talk about decks but, as we were talking about before we started taping, I shared with you that from time to time our retail and hospitality practice collaborates with our construction defect practice where there might be a deck collapse. Generally, if we get involved there’s a personal injury component to it. If it’s just a pure deck collapse property damage thing the construction defect guys will handle it. But we’ve had several cases over the years involving deck collapse, particularly down at the coast involving personally injury. Talk a little bit more about that as far as when you got involved in litigation and probably most importantly where are property owners getting themselves into trouble where it leads to a deck collapse?
GS: Sure. So often times I’m asked to evaluate the cause of the collapse. I’m a simple guy so I like my list and so there are several I guess basic problems that might result in a deck collapse. One may be improper use. It may just be simply overloaded. Another one may be construction defect where the size of the materials used, the type of material, the spacing of the material was improper and so you ended up with a situation where those components were overloaded and it collapsed. Another issue might be the degrading of those properties and so that would be either through rot of material or from water damage or corrosion of fasteners and those types of things. So particularly in the coastal environment corrosion is a big deal. That’s something that would be important for property owners to try to keep an eye on. There’s a basic problem that often times these components that are used to attach the rail to the structure, they’re hidden from view. So it’s hard to tell sometimes.
CS: Well, you make a really good point because a component of our retail and hospitality practice includes representing some of these vacation clubs, some of the Airbnb lines of coverage, and so you’ve got folks who have residential homes that they’re using for commercial purposes. The thing that I have thought about in a context involving the deck sense, like what you’ve just said, it might be very hard to detect to determine if there is a problem, but if you’re inviting these folks into your house and you’re renting it out to them essentially and everything on it’s face looks good, is there anything from a forensic or engineering perspective that a homeowner or vacation club management company, is there anything they could be doing on a periodic basis just to make sure that things at least appear to be on the up and up as far as a deck maintenance and deck structural integrity.
GS: So, as an engineer, it’s hard for me to expect a property owner to go unscrew bolts and check to see bolts. Now sometimes there’s a crawl space to a home. You can get up behind the deck and look at the connections from the crawl space. You can see if there is any decayed materials or corroded fasteners. If you have soft spots around the doors itself, let’s say there’s a balcony door, if there’s soft spots around there, that may indicate that there are issues. If there’s any sign of deflection or sagging or anything like that, those are kind of the things that you can look at. Unfortunately, I’ve been involved in files previously where there was really no evidence that anything was wrong. It would have been, this morning had to take unusual measures to find the condition or defect that ultimately resulted in the deck collapse.
CS: And of course the standard for property owners in South Carolina with regard to dangerous conditions is either knew or should have known about the dangerous condition, or if you created the dangerous condition but I can’t imagine in that circumstance that anybody is creating a dangerous condition. So, that notice element is important. The thing that I’m just sensitive to, I guess I’ve got my antenna up, is if you’re renting out a home or if you’re a vacation management company that is in charge of this, is there any sort of standard as it relates to periodic inspection by a professional like an engineer?
GS: Yeah, nothing that I’ve ever seen in the ordinances. That doesn’t mean that let’s say Murrells Inlet doesn’t have something like that in their ordinance, right, so it’s not some sort of nationwide or statewide requirement.
CS: So Glenn I know we’ve talked a lot about decks today. You’ve got almost a 30-year career with ED&T. What else are you doing? What are some of your other wheelhouses on a day-to-day basis?
GS: So this kind of dovetails into the same type of thing, but I spend a good amount of my project with existing buildings and structures and consulting with regarding construction or design or those types of things. I’m still young enough to crawl on roofs and crawl under buildings and do those things you have to do when your practice is existing buildings and I’ll continue to do that.
CS: That’s fantastic. So how do we find you? How do we learn more about Glenn Stewart and ED&T?
GS: So, as you indicated before, I work with Engineering Design & Testing and we’re a national-based company. We have offices here from South Carolina to California. I like to tell the joke that it’s, Tim Jerr who is the founder of our company, started in his garage just like Apple without the billions of dollars. So, we have electrical and mechanical engineers. We specialize in forensic or technical investigations. Our website’s EDTengineers.com. Check us out. Like I said before, we like to put out a lot of content. It’s typically not content about how great we are. We try to put content that’s useful to people and fact-based. Anyway, I appreciate the opportunity to be here.
CS: And you’re on LinkedIn?
GS: Yes, I’m on LinkedIn. I’m not very good with LinkedIn, but if you, we do have, EDTengineers is how you would find us on LinkedIn. Glenn Stewart, Columbia, South Carolina and I would love to connect with anybody.
CS: Fantastic. Glenn Stewart, associate chief engineer with Engineering Design & Testing Corp. here in Columbia. Thank you for joining us.
GS: Thanks for the opportunity. I appreciate it.
MB: And of more legal news of interest to South Carolina businesses, join us right here for the next episode of The Legal Bench.