August 23, 1996
This letter is in response to your questions regarding the adoption of plumbing codes in your city. The city would like to adopt the standard plumbing code to enforce in the area of the city lying in County A . Another governmental entity already enforces its plumbing code within County B. You asked: (1) Whether, from a liability perspective, the city should hire a part-time plumbing inspector or enter into an contract to perform plumbing inspections? and (2) Whether the city may in fact adopt a standard code to enforce in County A which is different from the code enforced in the County B part of the city?
As a general rule, employers have less potential liability for injuries caused by an independent contractor than from an employee. However, the risk of liability is minimized in this situation because cities are not liable for negligent or inadequate inspections. The Tennessee Governmental Tort Liability Act Tenn. Code Ann. § 29-20-205 provides in part as follows:
Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injuryarises out of:
(4) A failure to make an inspection, or by reason of making an inadequate inspection or negligent inspection of any property; . . .
Therefore, the city would be immune from suit arising out of any inadequate or negligent plumbing inspection. The city may still be liable for other occurrences (such as an auto accident) that take place in the course of the inspector’s employment. It is not uncommon for cities to hire independent contractors to perform inspection services. The decision usually turns on the whether there are enough inspections to justify a full-time or even part-time employee.
It is my opinion that the city may adopt and enforce the standard plumbing code in the County A portion of the city. The city has the authority to adopt a standard plumbing code. Tenn. Code Ann. § 6-54-501 et seq. However, the other governmental entity has exclusive authority for plumbing inspections within County B and enforces their own code throughout the county including that part of your city. The question has been raised whether your city could adopt and enforce a different code in County A. For the purposes of plumbing inspections, the County A part of your city is a separate jurisdiction. Your city has no control over what plumbing code is enforced in County B, but your codes enforcement officer does have authority to adopt a standard code in its part of County A. Since no plumbing codes are currently being enforced in County A, there already exists a disparity in your city in the application of plumbing codes between County A and County B. The adoption of the standard plumbing code would lessen this disparity.
Please feel free to contact me if I can be of any further assistance in this or any other matter.
MTAS Legal Consultant