DANIEL
S. CHAMBERLAIN
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PREMISES LIABILITY STANDARDS
Most
states have adopted the Uniform Building Code (hereinafter, UBC) The UBC was
first enacted in 1927 and is updated every three years. The UBC is
"dedicated to the development of better building construction
and greater safety to the public by uniformity in building
laws. The UBC is
an excellent resource of minimum, acceptable, safety standards
and is frequently the subject of expert testimony. Violations
of the UBC (jurisdiction permitting) may be the
subject of a negligence per se jury instruction.
1. UBC Overview
As
a general rule, "[e]very stairway having two or more
risers (steps) serving any building or portion thereof
. . ." shall have a handrail on each side of the stairway. The
handrail shall be placed not less than 34 inches nor more
than 38 inches above the step. The handrail itself
shall not be less than one and one half (1.5) inches nor
more than two (2) inches as measured by cross section. Each
handrail shall project no closer than one and one half
(1.5) inches from the wall. There shall be no sharp
corners on a handrail. Each handrail must run the
entire length of the stairway. At least one handrail
shall extend at least six (6) inches beyond the top and
bottom risers.
Hand rails serve three primary purposes:
a. To provide
the approaching pedestrian with a visual cue as to the
change in elevation and the presence of stairs.
b. To provide
a support to the stair user, especially the elderly and
others who may be motor-impaired.
c. To offer
the victim of slipping or tripping incidents a chance to
arrest an incipient fall by grasping the railing.
An inadequate handrail may be as useless as no handrail
at all and in most cases is an excellent theory of liability. Few
expert witnesses will deny that handrails are nothing less
than excellent safety measures and are available at relatively
low to modest cost. A safety professional (and medical
expert) may provide an adequate causal connection between
the type of injury sustained and the improper system design.
2. Stairway
Requirements - An Overview
Most
building codes provide uniform, minimum standards for
the construction (and subsequent remodeling) of stairways. The
purpose of the uniform standards are to provide a "common
experience" for consumers traveling from stairway to stairway. It
is believed that most persons "normally ascend or descend
stairs without much conscious thought. This process
depends on uniformity of step geometry, however. Recent
research has shown that it is common for subjects' feet
to clear step nosings by
less than [a quarter of an inch] 1/4" so that variations
in riser height or tread depth predictably lead to missteps."
Stairs with less than three steps shall be avoided. If
a short flight of stairs (less than three steps) or a single
step transition exists, appropriate warning cues are required. Such
warning cues include, "[h]andrails, delineated nosing edges,
tactile cues, warning signs, contrast in surface colors
and accent lighting . . . ." The
visual cues are necessary to warn pedestrians of an unusual
step down or stairway. Even though visual cues may
be used, such "cues or warnings do not necessarily negate
the need for safe design construction."
The UBC prescribes
the minimum physical dimensions of a stairway. The
width of a stairway shall not be less than 44 inches
or 36 inches for an occupant load less than 49 persons. The
rise (height) of the step shall not be less than four (4)
inches or greater than seven (7) inches. The
run of the step (flat portion of the step) shall not be
less than 11 inches as measured horizontally. The
greatest riser height within any flight of stairs shall
not exceed the smallest by more than 3/8 inch.. No
door shall open over a stairway. Further,
a stairway with a distracting view shall be avoided.
In general, uniform stairway dimensions are crucial for
safe pedestrian movement. A safety professional may
take into account the physical dimensions of the stairway,
human locomotion and behavioral studies and render a scientifically
verifiable opinion on whether the stairway was designed,
constructed and maintained in a safe fashion.
2. ASTM
Overview
The
American Society for Testing and Materials (ASTM) was founded
in 1898. Since that time, ASTM has developed into
one of the largest voluntary standards development systems
in the world. ASTM is a not-for-profit organization which
provides a forum for "producers, users, ultimate consumers,
and those having a general interest to meet on common ground
and write standards for materials, products, systems, and
services." Presently,
there are 130 standards-writing committees that produce
more than 10,700 standards each year. The standards
are published in 73 volumes and divided among 16 sections.
ASTM standards are reviewed, discussed, implemented and
followed throughout the world. Although voluntary,
the standards are an important step in establishing a basic
level or minimum standard of care to be followed by individuals,
businesses and manufacturers. Compliance with an
ASTM standard does not necessarily equate compliance with
a reasonable standard of care under individual circumstances.
A. Definitions, as prescribed by the ASTM -
1. Standard (noun) - a document that has been developed
and established within the consensus principles of the
Society and that meets the approval requirements of ASTM
procedures and regulations.
2. Standard (adjective) - indicates consensus approval
in accordance with ASTM procedures and regulations.
3. Provisional Standard - a document published for
a limited period of time by the Society to meet a demand
for rapid issuance of specific documents, such as an emergency
situation, regulatory requirements, or other special circumstances.
4. Discussion - committee members review and comment
on a provisional standard. A provisional standard
is accepted upon subcommittee consensus.
5. Classification - a systematic arrangement
or division of materials, products, systems, or services
into groups based on similar characteristics such as origin,
composition, properties, or use.
6. Guide - compendium of information or series of
options that do not recommend a specific course of action.
7. Practice - a definitive set of instructions for
performing one or more specific operations or functions
that does not produce a test result.
8. Specification - an explicit set of requirements
to be satisfied by a material, product, system, or service.
9. Terminology - a document comprising definition
of terms; description of terms; explanation of symbols,
etc.
10. Test Method - a definitive procedure that produces
a test result.
B. Initial Considerations - Does the Standard Apply?
The
standards are published in booklet format each designated
as a "Book of Standards". Each volume is published
annually and approximately 30% of each volume contains
revisions of standards previously adopted or entirely new
standards.
The following procedure should be used to initially evaluate
whether a standard may apply in a premises liability claim:
1. Has the Standard been adopted? If the standard
is provisional (meaning that the standard has not yet been
approved and adopted by an ASTM Committee), its applicability
is questioned until unconditional approval has been made.
2. When was the Standard adopted? It is presumed
that ASTM standards do not have retroactive application
to factual situations that arose at prior to formal approval
or adoption of the same.
3. Has the Standard been subject to revision? It
is important to obtain the subject standards for the year
prior to, during and after desired application to determine
whether any fundamental changes have occurred, and if so,
why were the revisions made.
4. Has the Standard been the subject of proposed
revision or other discussion? If so, the ASTM Committee
representative assigned to the subject standard will maintain
all comments, discussions, voting patterns, etc. This
information may be invaluable as Committee members (typically
representatives of manufacturers or other industry peers)
will submit their concerns in writing. These writings
are maintained as a permanent Committee record.
There are several types of common hazards that cause pedestrian
falls and are subject to expert testimony.
1. Speed
Bumps
Parking lots should be designed without speed bumps. If
a speed bump is located in a foreseeable pedestrian walkway
or path, the protrusion shall be "transitioned by means
of a ramp." The
speed bump shall be "clearly marked with safety color
coding to contrast with surrounding . . . ." A
painted speed bump must be slip resistant. "Caution
signs are recommended to warn pedestrians of the existence
of the speed bump."
2. Wheel
Stops
Parking
lots should be designed so that wheel stops are not necessary. If
wheel stops are used, the wheel stops should not be located
in an area that can reasonably be foreseen as a pedestrian
walkway. Wheel
stops should be made of concrete, not such material as
landscape timbers. All
wheel stops should be in painted or identified in "contrast"
from their surrounding. Wheel
stops shall be no longer than six (6) feet long and six
and one-half (62) inches in height above the parking surface. The
minimum width of pedestrian passage between wheel stops
is three (3) feet. There
shall be adequate illumination of the parking lot so that
pedestrians will be able to visually discern the presence
of wheel stops.
3. Carpet
Carpet shall be maintained so as to not create a pedestrian
hazard. Carpet
shall be firmly secured and seams tightly maintained. Id. At
no time shall there exist "loose or frayed edges, unsecured
seams, worn areas, holes, wrinkles or other hazards that
may cause trip occurrence." Id. All
carpet shall be routinely inspected. At
no time shall shag-type carpet be used on a stairway.
4. Floor
Mats and Runners
Building
entrances shall be provided with mats or runners, or
other means to help remove foreign particles and other
contaminants from the bottom of pedestrian footwear. Mats
and runners shall be used, as needed, in inclement weather
to keep building entrances and interior walkways dry. Replacement
of the mats or runners when saturated is mandatory. Mats
and runners shall be of sufficient design and area to control
the tracking of contaminants onto the floor surfaces "reducing
the likelihood of the floors becoming slipper."
5. Exterior
and Interior Illumination
Interior and exterior pedestrian walkways shall be adequately
illuminated. The
illumination must be free of glare and shall be designed
to eliminate the presence shadows.
6. Changes
in Walkway Level
Adjoining walkway surfaces shall be made flush. Unlike
most codes, the ASTM requires that new construction as
well as existing facilities comply with this requirement. Where
adjoining walkway surfaces meet, the following standards
shall apply:
a. changes
in levels greater than one-half of an inch (2) require
a ramp or stairway to make the transition;
b. Changes
in levels between one-quarter of an inch (3) and one-half
of an inch (2) shall be beveled between surfaces; and,
c. Changes
in levels less than one-quarter of an inch may be made
without any treatment.
Most experts agree that pedestrian walkways should be designed
to "facilitate foot traffic without introducing unnecessary
impediments. It is better to find out how and where
people tend to walk and design to that pattern than to
try and conform everyone=s behavior. . . ." A
safety professional should be utilized to present scientifically
verifiable concepts for the design, construction and maintenance
of parking lots and pedestrian walkways.
The
Opponent Expert - "The
Battle of the Experts"
An Expert can play a pivotal role in a particular case
and may often be instrumental in achieving a favorable
outcome. In a premise liability case, an engineer
or safety professional, in combination with a bio-mechanical
engineer and human factors expert, may overcome the burden
that the plaintiff was not injured, either wholly or in
part, as a result of a self-initiated act. In addition,
a credible expert may offer critical advice in handling
pre-litigation matters and in conducting discovery after
the filing of a lawsuit.
An
expert witness may offer an opinion on the ultimate question,
based neither on fact or reasonable conclusion, but on whether
the client=s interests are protected. Such an opinion
may be grounded in nothing more than mere conjecture, speculation
and at worst, intellectual and scientific fraud. There
are many variables and contingencies in the causal analysis
of a premises liability case. Expert conclusions may
be massaged to assure a desired outcome or are contingent
on many factors including the proper selection of testing
devices and testing procedures, environmental conditions
and accurate reporting.
To defeat the abuse of an expert witness opinion in a premises
liability claim, it is important to hire a credible, reliable
and honest expert to review, to document and to expose any
inconsistencies in the proffered opinion. An expert
opinion may be attacked on many grounds including a foundational
deficiency, and that the opinion is not based on verifiable
"scientific reasoning". There is no shortcut for
adequate case preparation and the study and application of
government standards, building codes and industry guidelines
to the premise liability case.
The UBC has
been adopted by the State of Indiana. See, 675
IAC 13-2.1-1; 675 IAC 13-3.1-1; IC 22-13-2, 4, 9.
Preface,
Uniform Building Code, International Conference
of Building Officials, 1988.
AIn order
for violation of statute or ordinance to be held as negligence per
se, a trier of fact must determine whether the statute
is applicable. It must decide whether the statute
was designed to protect the class of persons in which
the plaintiff is included against the risk of the type
of harm which has occurred as a result of its violation.@ Dawson
by Dawson v. Long, 546 N.E.2d 1265, 1268 (Ind.App.
4 Dist. 1989).
Section
3306 {a}{j}, UBC, International Conference of Building
officials, 1988.
See, Marion
county, Indiana, Housing and environmental Standards
Ordinance, A[e]very . . . inside and outside stair
. . . shall be safe to use and shall be kept in sound
condition and good repair.@ Sec. 10-701.
ASTM,
F1637-95, 6.1.2 - Step nosings shall be readily discernible,
slip resistant, and adequately demarcated. Random,
pictorial, floral, or geometric designs are examples
that can camouflage a step nosing.
ASTM,
F1637-95, 6.2.1, 2 - Where a short flight of stairs cannot
be avoided, Aobvious visual cues shall be provided to
facilitate step identification.@
UBC,
Section 3306 {c}; See, Marion County, Indiana, Housing
and Environmental Standards Ordinance, A[e]very
inside and outside stair or step shall have uniform
risers and uniform treads.@ Id.
ASTM. F1637-95,
6.1.1 - Stairways with Adistracting@ forward or side
views shall be avoided. A Adistracting@ view is
one which can attract the stair user=s attention (i.e.
advertisements, store displays), thus distracting the
stair user.
Individuals
may apply for membership in ASTM at the rate of $65.00
per year. A membership application or additional
information (including standards) may be obtained by
contacting ASTM, 100 Barr Harbor Drive, West Conshohocken,
PA 19428; Telephone: 610-832-9693; or, online at http://www.astm.org.
ASTM,
Foreword, p., iii. Note: Most members of ASTM Committees
are comprised of members of industry and corporate America.
ASTM
Sections are identified as follows: Section 1-Iron and
Steel Products; Section 2-Nonferrous Metal Products;
Section 3-Metals Test Methods and Analytical Procedures;
Section 4-Construction; Section 5-Petroleum Products,
Lubricants and Fossil Fuels; Section 6-Paints, Related
Coatings and Aromatics; Section 7-Textiles; Section 8-Plastics;
Section 9-Rubber; Section 10-Electrical Insulation and
Electronics; Section 11-Water and Environmental Technology;
Section 12-Nuclear, Solar, and Geothermal Energy; Section
13-Medical Devices and Services; Section 14-General Methods
and Instrumentation; Section 15-General Products, Chemical
Specialties, and End Use Products; Section 00-Index.
Regulations
Governing ASTM Technical Committees, Section 14.
Each
Standard contains the following information: Designation
Number (Internal code to easily access a Standard within
a particular volume); the ASTM Committee and Subcommittee
directly responsible for the standard; Year Standard
was adopted, reapproved or revised.
See,
EXHIBIT C: Slip and Fall Text and Other References.
ASTM,
F1637-95, 7.2, 7.3, 4.2.4.
ASTM,
F1637-95, 7.3; ANSI Z535.1.
ASTM,
F1637-95, 8.2, 8.3.
ASTM
F1637-95, 4.4.2, 4.4.2.
ASTM
F1637-95, 4.4.3, 4.4.4.
ASTM
F1637-95, 4.5.1, et al.
ASTM
F1637-95, 4.2.2, 4.2.3, 4.2.4.
ASTM
F1637-95, 4.2.2, 4.2.3, 4.2.4.
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