From: Charles Greenlaw <cgreenlaw(--nospam--at)speedlink.com>
Date: Thu, 17 Jun 1999 20:42:44 -0700
This Reply gets into legal issues affecting engineer's practice and
testimony. It isn't much about nails, but about engineers getting nailed on
naive grounds of minimal merit. -C.G.
At 01:33 AM 6/17/99 EDT, Ray wrote:
>My thanks to Dennis, Charles, Lynn and Tom for your response.
>As you may have surmised, this a legal case in which the framer used box
>nails in lieu of common nails for all of the plywood shear walls in a
>residential housing project designed and built circa 1988 - 1989.
>The general notes for wood framing included a typical shear wall schedule
>where the nailing for each plywood shear wall was called out as 8d or 10d at
>the appropriate spacing per Table 25K of the U. B. C. There was no other note
>specifying common nails.
>I am reluctant to totally blame the framer even though the U.B.C. section for
>the complete nailing spec was referred to.
Ray, I am the one who surmised there was litigation afoot in your original
question. Now I am going to further guess that you have been consulted
pursuant to a "Certificate of Merit" as to whether there is grounds for
suing an engineer. Alternatively maybe you have been approached by the PE
Board as presumably a "technical expert." (I'm assuming you are in a
Whatever, here are a few considerations:
How is it known that the framer had a duty to use common nails, when the
plans called for use of a UBC table that effectively allowed either common
or box? Is it definitely known that the engineer depended on common nails
and not a thinner nail? Is it known that the engineer wasn't innocently
under the impression based on what the code table said, that any 8d, down in
thinness to a box nail, was acceptable? As for insistence on galvanizing,
let's look at what Tom Jakaby posted about galvanized nails just yesterday
morning, and which has gone unrefuted to date:
>The section does appear to say that corrosion ressistant fasteners are
>required. I think the reason is that if your using pressure treated wood
>it's because the wood is in contact or near a source of moisture and ,
>therefore , the fasteners could rust.
>Here is where I believe the Code allows for engineering judgement. I am not
>going to change to G.I. nails for the mudsill nailing at shearwalls. A
>building official may over-rule my decision, someday.
>Tom Jakaby, SE
>San Jose, CA
Here's a SE who believes a clear code requirement for galvanizing can be
ignored based on "engineering judgment." If it's OK for him, why not for all
of us, including whomever used (I presume) ungalvanized box nails on the job
you are examining? Especially if the building official (back then and in the
future) made no objection, the way Ben Yousefi earnestly said he wouldn't
object on rigid/ flexible diaphragm issues? In my earlier post on this
subject I too gave an "engineering judgment" reason why galvanizing wouldn't
make any difference in covered conditions.
How is it known that ANY "blame" (your word) AT ALL should fall on ANYone
because box nails were used on the job?
Is it known whether the actual nails used were thicker than box nails, and
thus (in one's engineering judgment) mitigated a lack of galvanizing?
Is it known that the engineer didn't conservatively design for shear, such
that either 8d nail in the table would work OK, and that it wouldn't really
matter what the framer drove?
Now let's continue with your posting:
>My experience has been that there was enough confusion in the construction
>indusrtry regarding nail types in that time period that I would then and now
>feel negligent if I did not specify "common nails only" in my plans or specs.
>I also believe that referring to the U.B.C. to determine nail types is a
>cop-out and the construction documents should be clear and complete regarding
>materials and fasteners.
These two paragraphs are fine if they are limited to how YOU like to do YOUR
own practice, and how you recommend others do theirs *in the future*.
But the matter at hand is, as you put it, "blame". Blame for somebody else
for something in the past, as a basis for collecting money and perhaps
lifting an engineer's license as well. Not the contractor's license, because
there is a short statute of limitations on them, but no limit at all for
Blame has to fall into certain defined legal categories-- negligence,
incompetence, fraud or deceit or misrepresentation, breach of contract, etc.
You said YOU would feel *negligent* if you did not specify common nails on
the plans. OK, fine. Let's run with it.
Do you have a clearly understood definition of negligence based on legally
recognized authority, such as BAJI (jury instructions), Cal Jur 3d, Black's
Law Dictionary, CEB volumes on torts and on expert witnesses, Cal Practice
manuals, etc.? Not to know would be pretty shaky as to your own due care and
not being negligent. [Note that I did not mention any PE Board definition of
negligence. They are loath to admit it, but they don't have one in either
statute or regs; rather they "spin" a self-serving one that fluctuates among
"standard practice" or "standards of practice", never using the word "care".
Beware of the PE Board, especially in residential complaints. See Seaint
website archives for Sep 17 and 19, 1997, my two postings under "BORPELS
and residential room additions". Someday I'll post how that case came out.
You should have been there when I told the PE Board to their faces in front
of all their enforcement staff how it came out.]
Are you aware that your own version of "standard of care" or of "due care"
has no bearing on whether another person is negligent? True. What matters is
what prevailed among like practitioners in the very same work at that time
in that area, not what the "Fussiest Fifteen" in the state say they always
do and always did. Schoolhouse practice isn't residential practice; City of
LA practice now isn't Coachella Valley practice back then, like what
Dennis's competitors apparently did.
I had a chat recently with Robert McGhie, a friend and fellow SE who has
lots of plan review experience and an active trial attorney practice. He
emphasizes the need for an expert to know how everyone else actually
practices in the issues at hand instead of making a strong argument how it
ought to be done, which is actually beside the point in testing for
negligence. He's in the State Bar roster but not in SEAOC's anymore.
How is one to blame for following, under ordinary, well-forseen
circumstances, substantially what the code permits and what the code's
ordained interpreters had no objection to?
And last, do you appreciate the devastatingly expensive defense a casually
fingered residential engineer must mount to save his license and his
savings, once another engineer has agreed to blame him and an aggressive set
of accusers have relied on it?
More follows in reply to another replier.
Charles O. Greenlaw, SE
Member, SEAOC Prof'l Practice Committee (which perhaps tellingly hasn't met
in at least seven months or released its finished manual; I'm speaking for