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RE: SEAOC seismology opinion ...

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Mike Valley, you raised some good points worth pursuing, and I appreciate
your tolerance and resilience for my stealing away from your intended
context a tempting line you posted.

I half expected a challenge to my "prima facie negligence" label on the
situation described in your observation that, "Many code problems arise
because too much work is left to too few volunteers with too little time."

So here goes the explanation:

First, I accept these legal definitions you offer (while remembering also
the BAJI definition of negligence, based on standard of care, in Josh
Kardon's Paper):

>The pertinent legal definitions are:
>prima facie evidence-Evidence that would if uncontested establish a 
>fact or raise a presumption of a fact.
>negligence-The omission or neglect of reasonable precaution, care, or 
>action.

It appears you have said that the "code problems" arise because of too
little human resource and time applied to them for the codewriting job to be
done sufficiently well. I also took it that the code problems in question
are substantial and serious, not trifles of no consequence. Another
inference is that if there were adequate time and personnel applied to the
task, such code problems would not arise. (I assumed these meanings were
intended.)

I assumed further that it is widely understood by professional engineers who
write provisions intended for code adoption that such provisions becomes a
basis for costly-to-defend lawsuits and license revocation proceedings, not
just a source of wasteful learning-curve consternation and annoying
arguments with plan checkers. I assumed a duty of ordinary care on the part
of committee members toward the professional welfare of fellow engineers and
others who are intended to become subject to the burdens of the code being
written.  

And I assumed that there was no law in effect that ordered the codewriting
committee in question to turn out a certain minimum size and scope of code
rewrite, by a certain date, or else. Nothing, I take it, compelled the
committee to set aside its own professional scruples and to sacrifice
quality in favor of quantity and deadline. No compelling life and property-
protection necessity was ever shown that mandated enactment of a Rho factor
for plywood shear walls, or any other kind of shear walls, regardless of
available personnel and review constraints, for the 97 edition of UBC. 

Yet without acting under coercion, the committee undertook to release, and
urge adoption of, not a minor revision to a familiar code, but a totally
rewritten seismic design code in brand-new language and with brand new
formulas. The committee did this voluntarily, on its own responsibility. The
committee did this without enough people and without enough time. The Rho
factor provisions for plywood shear walls were never seen before and came
from only one person, who had very different walls in mind, and were checked
by nobody else.  

When the urged adoption was being questioned and contested (as to plywood
shear walls, by A.F.and P.Assn.) the committee circled its wagons and
defended its too-hastily concocted, never-checked proposal with all the
clout and prestige it possessed, knowing it had devoted insufficient
resources to the issue to have a reasonable basis for the merits of its
position.

And their as-adopted code provision jeopardizes fellow engineers, for all
the reasons expressed over many months, without compensating benefits to anyone.

If this conduct isn't, on its face, a clear "omission or neglect of
reasonable precaution, care, or action" on the committee's part, I don't
know what to call it. 

To draw a contrast within accepted engineering practice, a question: Who
among us would design a SINGLE building by an equivalently untried,
unfamiliar design theory, with so little time, precaution, and care as was
devoted to this code provision, a provision that affects a good half of ALL
buildings the UBC covers? And who, having done so, would argue down a
skeptical reviewer who stood in the way of later approval by others who
wouldn't on their own know any better?

That's how I figured the negligence on its face. The committee could have
chosen to release no more than it had sound reason to be sure was well
founded and thoroughly tested out, using sufficient internal and external
resources, and having a knowing eye to the risks and consequences and on
whom they fell. All else could be held back as not ready yet, same as in our
own design practices. 
  
I grant that nobody makes a mistake on purpose. British guru of cognition
Edward DeBono makes that case very well. The negligence flows not from an
inadvertent mistake, but from a withholding of sufficient care in the
customary process the committee follows. Nor does any habitual or systematic
nature of that withholding of care create a "standard of care" defense:
"The mere fact that certain conduct is customary or usual does not exclude
the possibility that it is negligent, since a custom or usage may originate
from motives not proper with regard to the discharge of a given duty."
[48CalJur3d, Negligence, sec 24.]  Absent compelling necessity, undue haste
and committee ambition and shortage of volunteers are each rather improper
motives for withholding sufficient care. In other words, do no more than can
be done with due care.

Thanks again, Mike, and best regards; I hope this offering is civil enough
for the others.

Charles O. Greenlaw, SE  Sacramento CA