Toddler Slips Through Balcony Rail, Falls to Death at Virginia Beach Hotel

A tragic accident in Virginia Beach last week has called new attention to deck and balcony railing safety issues, reported the News Leader on June 21 (“ Death puts focus on railing gap,” by Megan Williams). According to the report, two-year-old Lea Shiloh Moats was playing on the balcony in the care of a grandparent when she slipped between the balusters of the railing and fell five stories to her death. Recent versions of the Virginia building code, based on the International Building Code, allow no greater than a four-inch gap between railing balusters. “But the Sandcastle Oceanfront Resort and Hotel, where Lea and her family were staying, was built in the 1960s, and the code in effect at that time applied. It allowed 6-inch gaps,” the paper reports. According to news reports, many older hotel and motel accommodations in Virginia Beach, and elsewhere, have balconies built under older code versions that allowed railing spacing wider than four inches — often, spacing too wide to ensure the safety of small children. And the latest Virginia Beach tragedy, while unusual, is by no means unique. In 2008, for example, a child fell two stories in a similar accident in Redding, California, but fortunately survived the fall, according to the Redding Record Searchlight (“ Apartment railing where toddler fell will be updated,” by Ryan Sabalow). Unsafe decks on residences, of course, are frequently noted by professional home inspectors involved in real estate transactions. Railing spacing is only one of the unsafe conditions that inspectors find, but it’s one of the more vexing problems for inspectors — because in most cases, as in the Virginia Beach hotel, the code allowed the detail at the time of construction. In a forum thread at the nachi.org website (“ Wide gaps in outside deck railing”), an inspector asked, “I find a lot of wide gaps in outside deck railing (4 to 5 inches and above), (older homes). Is this something homeowners have to change, or something I have to mention as a safety issue? Either way, the realtor and home seller don't like it much.” Respondents on the forum held different opinions. “If it’s an older structure,” said one, “I would not make it an issue. I do not feel that it is the home inspector’s place to require corrections that meet, or met, code requirements at the time the structure was built.” Another, however, recommended this language: “The guardrail balusters do not conform to current standards. The pickets should be spaced no more than four inches apart for child safety, and you may wish to have them brought into compliance." At another home inspector forum, inspectionnews.net, a poster asked for information on current deck construction code rules. The deck he was inspecting, he said, had no vertical balusters at all beneath the railing. His request for information (“ Deck railing requirements”) kicked off a long, legalistic discussion about not just the home occupant and the home inspector’s duties, but also the rights, powers, and obligations of the condo association at the property. One respondent, “construction litigation consultant” Jerry Peck, advised sending a strongly worded letter to the condo association demanding an immediate repair and threatening legal action. But what about the duties of a remodeler or deck contractor who works on an existing deck, where the railing spacing may not meet current code? Different situations may bring up different, puzzling choices. According to building code, you’re only required to upgrade parts of the building that you actually work on or modify, said one professional deck contractor; but to cover their own rears, contractors may want to recommend, or at least suggest, going beyond the legal minimum. “Here’s an example,” he said: “We worked on a deck this year where the stair railings were rotted, but the railings on the main deck were in good shape. So we replaced the stair rail, and we changed the baluster spacing to meet modern code — spaced no further than four inches apart. I told the homeowner that the balusters on the main deck were a little farther apart than four inches, and didn’t meet the current code; but he said to leave them alone, so we did. But if he had wanted me to install the new balusters on the new railing at the old spacing, I would have refused.” In another case, the contractor was working on a short set of “wedding cake” deck stairs that went down in three directions from the deck, and had no banister. The customer didn’t want a banister, even though the code called for at least one graspable handrail. “This was a permitted job, and I told him that the stairs would flunk a building department inspection, but he said that was okay,” says the contractor. “So we built them without the railing — it was only three steps — and sure enough, they flunked. But he didn’t care. But then later, he had an insurance adjuster at his house because of some roof damage, and he ended up getting a letter from the insurance agency pointing out ‘Hey, by the way, there’s no banister on your deck stairs, and that’s a safety hazard and a code violation.’ The implication was that if anyone got injured, his insurance policy wouldn’t cover him. So he called us back to put in a banister, and we did.”