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The international codes — plumbing, mechanical, fuel gas, building, residential and property maintenance — each contains, in the beginning, administrative provisions. These provisions outline, generally, the scope and purpose of the code, the applicability of the code, and compliance and enforcement provisions.
The compliance and enforcement provisions cover a wide swath of areas, such as the duties of a code official, permits and fees, inspections, and violations and appeals. The administrative chapters of each model code are authored, voted on and adopted by differing groups of people. The administrative provisions do not contain technical or scientific content that would make any administrative provision particularly relevant to any one technical code to the exclusion of others.
As an expert witness in personal injury and property damage lawsuits brought in the courts across the United States, I have become familiar with how the technical codes are applied in a legal framework in order to assign liability for harm caused by a poorly designed, installed or maintained plumbing system. I am often asked my opinion on not only what technically went wrong, but who is to blame for what went wrong.
Simply referring to the administrative provisions in the technical codes may not be sufficient to answer the question, “Who bears liability?”
The administrative provisions of the technical codes identify the person or entity responsible for compliance with the requirements of the technical codes and are commonly written as: “the owner or the owner’s designated agent.” For example (emphasis added):
• 102.3 Maintenance (2012 International Plumbing Code)
“All plumbing systems, materials and appurtenances, both existing and new, and all parts thereof, shall be maintained in proper operating condition in accordance with the original design in a safe and sanitary condition. All devices or safeguards required by this code shall be maintained in compliance with the code edition under which they were installed. The owner or the owner’s designated agent shall be responsible for maintenance of plumbing systems. To determine compliance with this provision, the code official shall have the authority to require any plumbing system to be reinspected.”
• 3401.2 Maintenance (2012 International Building Code)
“Buildings and structures, and parts thereof, shall be maintained in a safe and sanitary condition. Devices or safeguards which are required by this code shall be maintained in conformance with the code edition under which installed. The owner or the owner's designated agent shall be responsible for the maintenance of buildings and structures. To determine compliance with this subsection, the building official shall have the authority to require a building or structure to be reinspected. The requirements of this chapter shall not provide the basis for removal or abrogation of fire protection and safety systems and devices in existing structures.”
• 102.2 Maintenance (2015 International Plumbing and Mechanical Code)
“Equipment, systems, devices and safeguards required by this code or a previous regulation or code under which the structure or premises was constructed, altered or repaired shall be maintained in good working order. No owner, owner's authorized agent, operator or occupant shall cause any service, facility, equipment or utility that is required under this section to be removed from, shut off from or discontinued for any occupied dwelling, except for such temporary interruption as necessary while repairs or alterations are in progress. The requirements of this code are not intended to provide the basis for removal or abrogation of fire protection and safety systems and devices in existing structures. Except as otherwise specified herein, the owner or the owner's authorized agent shall be responsible for the maintenance of buildings, structures and premises.”
Those administrative provisions assigning responsibility for compliance with the technical codes sometimes conflict with a state’s law assigning liability for harm caused by poorly designed, installed or maintained plumbing systems, such as agency law, contract law, landlord-tenant law, housing law, innkeeper law and professional liability law.
For example, consider that the owner’s designated agent (which is identified in the codes as the person or entity responsible for maintenance of plumbing systems) may be a maintenance or management company whose services are contracted for by the owner, but the contract does not permit repairs of a certain nature or over a certain dollar amount.
The contract may also not consider that the employees of the maintenance or management company have no formal training or licenses to work on plumbing systems and know little of the code, but that the owner made no inquiry into the qualifications of the employees and has no maintenance policies or procedures of its own.
The Uniform Construction Code
In my experience as a design professional, code consultant and expert witness in personal injury and property damage cases brought in the courts across the country, I find that some states, when adopting the model codes, do not adopt the administrative chapters of the model codes.
Instead, many states have adopted a body of law that is given the umbrella term Uniform Construction Code. This law usually contains an administrative chapter that is relevant to all construction activities. However, the administrative chapter of a state’s Uniform Construction Code is not the only law that assigns responsibilities and liabilities for compliance with the technical codes.
Other laws, such as landlord-tenant laws, also assign responsibilities and liabilities for compliance with the technical codes. Each state has different notions of how its technical codes should be applied and enforced.
The strength of our laws, and whether they are full, complete and clear, is only demonstrated when a disaster has occurred and when we then attempt to determine:
• What exactly went wrong (the “errors”);
• If a code provision exists to address the errors, and;
• If a code provision exists to assign responsibility and liability to any particular individual or entity for the errors.
The harm caused by a poorly designed, installed or maintained plumbing system can be serious and life-altering, such as injury or death from a scald burn, Legionnaires’ disease, carbon monoxide asphyxiation, fuel gas explosion or fire, and physical harm or death from rupturing pipe or equipment.
For several decades, the model codes, International Plumbing Code and Uniform Plumbing Code included a section intended to protect against scald burn injuries in showers and combination bathtub-showers. This section required the limitation of the maximum temperature of hot water that can flow from a showerhead or bathtub faucet to no greater than 120 F by a manual adjustment of a limit-stop. The limit-stop is required to be an integral component of every individual shower and tub-shower valve in accordance with the requirements of ASSE 1016.
The 2018 International Plumbing Code (third printing, September 2019) continues to require that shower and tub-shower valves not only contain an integral limit-stop but also that it be field-adjusted to limit the maximum temperature of hot water that can flow from the faucet.
“Individual shower and tub/shower combination valves shall be balanced-pressure, thermostatic or combination balanced-pressure/thermostatic valves that conform to the requirements of ASSE 1016/ASME A112.1016/CSA B125.16 or ASSE A112.18.1/CSA B125.1 and shall be installed at the point of use. Shower and tub-shower combination valves required by this section shall be equipped with a means to limit the maximum setting of the valve to 120 F (49 C), which shall be field-adjusted in accordance with the manufacturer’s instructions. In-line thermostatic valves shall not be utilized for compliance with this section.”
It is clear that the intended purpose of this section (as well as the companion section for stand-alone and whirlpool bathtubs, requiring limitation of the maximum temperature of hot water through the use of an ASSE 1070 valve) is scald protection, although the International Plumbing Code does not use that term.
For example, when installing a gas water heater, the International Fuel Gas Coderequires the installation to be in accordance with the scald protection requirements of the International Plumbing Code (“The requirements for water heaters relative to sizing, relief valves, drain pans and scald protection shall be in accordance with the International Plumbing Code.” See section 624.1, Installation requirements, IFGC).
As I have written in numerous columns and articles, the limit-stop is an integral component of individual shower and tub-shower valves, and it is essential that it be manually adjusted: initially, seasonally, and every time the hot water system temperature changes (this includes every time the water heater is lit and during seasonal changes in the cold water temperature). This is to limit the maximum temperature of hot water that can flow from the faucet to a safe temperature, no greater than 120 F.
Scald Injuries at Rental Properties
I also advocate for the installation of a master temperature-actuated mixing valve installed near the source of hot water generation, i.e., near the water heater, in order to have a steady temperature of hot water delivered up to the shower or tub-shower valve. However, the proper adjustment of the limit-stop is the front-line defense in the system to protect a bather from scald burn injuries that commonly occur in showers and in bathtubs.
However, serious, life-altering or deadly scald burn injuries still occur in showers and bathtubs across the United States. When scalding injuries occur in rental properties, such as multiunit apartment buildings, a lawsuit may be brought for injuries and damages caused by the scald burn against the owner of the building, landlord or management company (collectively, defendants).
I am oftentimes surprised to find that the codes adopted and the laws enacted by the various states are not always crystal clear with respect to what should have been done to prevent a scald from occurring and who is responsible for it.
For example, the defenses I have heard raised by property owners and their agents, such as management and maintenance companies, to avoid liability for the extremely hot water temperatures that flow from the bathtub spouts and showerheads in their buildings include the following (which are often given credence in the form of an expert report written by a professional engineer):
“I hired a plumber to repair my leaking water heater/install a mixing valve/start up my boiler for the winter season/replace my water heater sometime in the past, so the plumber is at fault for the hot water temperatures produced by the water heater or boiler and delivered to, and through, the bathtub faucet and showerhead.”
“The water heater was already installed when I bought the building, and I did not make any other changes to the plumbing system, and I never had any complaint that the water was too hot.”
“I never received a complaint that the water was too hot; instead, I receive complaints all the time that the water is not hot enough. Without a complaint by a tenant that the water is too hot, I have no way of knowing what the water temperatures are.”
“The mother/father/caregiver should have been watching the child more closely, but they were somewhere else than in the bathroom watching the child, and they knew that extremely hot water could come out of the faucet, so they are at fault for the injury.”
“Even though my plumbing system was capable of producing extremely hot water temperatures that were permitted to be distributed, up to and through, the tub-shower combination valve, unabated, the injured person has epilepsy and passed out, and doesn’t remember what happened — so they could have just as easily been scalded by remaining in hot water less than 120 F for long enough to cause the scald injury.”
“The plumbing code is a new construction code, and there is no code provision requiring a building owner to install ASSE 1016 valves in existing installations. Without the installation of an ASSE 1016 valve in a renovation, there is no code provision requiring a building owner to otherwise maintain the plumbing system in a manner to ensure the maximum hot water temperature flowing from bathtub spouts and showerheads is no greater than 120 F.”
“The law actually requires that my plumbing system be capable of ‘supplying’ extremely hot temperatures.”
“Even though I replaced a water heater, I made a ‘like-for-like’ exchange. I did not make a change to the plumbing system that would make it become unsafe, so I did not have an obligation under the code to replace the old, two-handled faucet valves when I replaced the water heater. Requiring me to install code-compliant shower valves would be very expensive.”
“The installation instructions say the installer is responsible for setting the limit stop on the tub-shower combination valve in order to limit the maximum (mixed) hot water temperature that can flow from the valve, so the installer is at fault for the scald burn injury.” (This defense is raised even in those cases where hot water was not being produced by the water heater when the valve was installed).
“The plumbing code is a construction code, and the code only requires the installer to field-adjust the limit stop on the tub-shower combination valve at installation and after construction is completed. There is no provision in the plumbing code requiring a building owner to otherwise maintain the valve or re-adjust the limit-stop.”
“The shower valves come pre-set from the manufacturer.”
“The temperature produced by the water heater is the temperature that the thermostat dial is set to, and that is the temperature that is delivered to the bathtub spouts and showerheads.”
“I had to keep the water really hot to kill Legionella bacteria.”
These defenses are raised time and time again. The scald cases I have been involved in typically involve plumbing systems in older buildings that either still contain old, two-handled faucet valves, where one handle controls the cold water and the other handle controls the hot water, or single-handled shower valves that have an integral rotational limit-stop but the limit-stop has never been adjusted, or there has never been any inspection, cleaning, de-scaling or maintenance of the valve since its installation.
These scald cases typically involve extremely hot water, serious injuries and many other troubling issues with the plumbing system design, installation and maintenance beyond the extremely hot water temperatures produced, distributed and delivered to bathers.
Of course, I find that none of these defenses “hold water,” and some are just plain wrong. However, oftentimes I find that a state has omitted the administrative provisions of the model codes completely or have amended those provisions to delete the reference to maintenance.
I will then refer to a state’s nontechnical laws to find the rule that places the obligation on the building owner to comply with the technical codes, such as landlord-tenant law, which generally requires a landlord or property owner to provide safe premises. Housing law generally requires a property owner to maintain devices in accordance with the code provision under which they were installed.
However, having to resort to these nontechnical laws has the potential of creating a patchwork quilt of substantive obligations across the United States.
Do Technical Codes Sufficiently Address Scald Injuries?
Despite the plumbing code’s long-standing requirement for the installation and field-adjustment of individual shower and tub-shower combination valves that meet the ASSE 1016 standard to ensure water temperatures of no greater than 120 F flow from bathtub faucets and showerheads, there are still numerous people who are forced to shower and bathe with an old, two-handled faucet valve.
These two-handled shower valves are unsafe for many reasons, such as they have no means of limiting the maximum temperature of (mixed) hot water flowing onto the bather; yet, these installations still exist and, surprisingly enough, many are approved by authorities having jurisdiction. The question we should be asking is, are the technical codes sufficient enough to put an end to these dangerous scald hazards, i.e., two-handled faucet valve installations?
We also should be asking if the technical codes are sufficient enough to ensure that not only are code-compliant faucet valves installed and field-adjusted initially, but also that these valves are continually maintained by adjusting the maximum temperature limit-stop each time the hot water system temperature changes.
In previous columns, I have written about the Consumer Product Safety Commission (CPSC) and the activities surrounding the 1978 petition known as the Seattle Power & Light Petition. Numerous documents maintained by the CPSC include a draft of a July 1978 letter to Sen. Warren Magnuson, written by the CPSC.
In this draft, the CPSC informs the senator that it has worked with the bathtub and shower industry, as well as manufacturers of components, in the development of safety requirements for water temperature-limiting devices, stating that these requirements have been incorporated in a voluntary standard being developed by ASTM Committee F-15 on Consumer Product Safety.
The CPSC letter continues:
“If these standards are adapted [sic] by the industry, and the products are installed in the domestic water systems, they will significantly reduce the hazards of scald burns in bathtubs and shower stalls for newly constructed homes. Hopefully, a well-publicized program will encourage retrofitting of existing installations with these new devices.”
It’s been more than 40 years since the CPSC “hoped” that people would retrofit old plumbing systems with water temperature-limiting devices. In my analysis, no legal ground exists to allow the continued existence of these dangerous, two-handled faucet valve installations. Nor is there legal ground allowing a property owner or its agent to fail to continually maintain code-complaint valves to ensure a safe, maximum (mixed) hot water temperature flowing from the valve.
However, the time to just “hope” and “encourage” safety should end, and our technical codes should be made crystal-clear.
In recent years, the International Code Council (ICC) realized that the administrative provisions in each of its technical codes were due for some uniformity; it is just not workable for states to have differing administrative provisions for the various trades.
The ICC realized that each technical code committee was spending time on administrative code matters, and that these matters were not always consistent in their language. As such, the ICC created an Administrative Code Committee, with its own hearings, for the administrative sections.