by Benjamin H. Hammond

Homeowners frequently question why they cannot sue a building inspector who issued a certificate of occupancy for a home that was clearly not built in accordance with the building code.  The answer is that a building inspector, as a government official, has what is known as governmental immunity.  This special immunity requires there to be an elevated standard of negligence, gross negligence, in order to bring a cause of action against such an individual.  Prior case law has confirmed that this is a difficult burden to sustain in most cases.

Recently, in the case of Gordon v Jim Lippens Construction, Inc., the plaintiffs contracted to have a home built.  The defendant inspector observed the home as it was being built and approved the framing in 2004.  He issued a certificate of occupancy in 2005, and in early 2006, the plaintiffs noticed significant deflection in the slope of their roof.  Experts concluded that the framing and structure had not been built according to the plans, specifications or the applicable building code.

In the lawsuit against the building inspector, the court ruled that while the actions of the building inspector may have been a proximate cause of the damage, it was not “the one most immediate, efficient, and direct cause” of the damages.  Since the township building inspector’s conduct was not “the” proximate cause of the damage, he was entitled to governmental immunity and dismissal from the lawsuit.

While this news is difficult for a homeowner to understand and accept, particularly in a circumstance where the general contractor is out of business and/or not collectible, it is helpful to be aware of this information during construction so that the homeowner can take adequate measures to protect itself against any defective construction of the home by the contractor.