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RE: Testing the waters in Court

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Let me throw a in few misc. comments on this thread and its mate, "UBC/LA
City Code and Lateral Design Forces". The scary stuff comes at the end.

Failure to meet the "Standard of Care" is a basis for finding negligence on
the part of any professional. The general jury instruction for this is in
"BAJI", but is reprinted in the footnote to the Introduction Page in the
SEAOC Guidelines for Practice of SE, the latest edition of which was
distributed to individual SEAOC members a couple of months back.

A fine discussion of this jury instruction as it relates to SE practice (and
more) is in Berkeley, Calif., SE Joshua Kardon's paper of April 1999, which
is on the web at:   

But there is also the principle of "Negligence per se", which as I
understand it, does not key on any expert witness-defined standard of care,
but rather that the accused person violated a law or regulation that has
protection of life or property as its objective, and negligence is presumed
from that alone. Structural code provisions typically have that purpose.

The worry at hand in this thread seems to be whether an engineer who follows
a building official's "interpretation" that differs from what you or I or an
expert witness think the code says, and where the interpretation eases a
situation, is in violation of code and therefore is presumed negligent.

There is a principle in common behind both of the above approaches to
whether an act or omission is negligent: It is the "reasonable person"
principle. It generally is reasonable and non-negligent to act as other
well-intended persons of like skill and training would act in like
circumstances. One can see this principle spelled out in the BAJI definition
of "Standard of Care." It is also a reasonable act to obey a recognized
safety regulation. 

In the case of recent building codes, many of the particulars are confusing,
or they misfit some situations to which they appear aimed, or are
unreasonably burdensome and appear unnecessary to fully execute in simple
The building code itself thankfully empowers the building official to
interpret the code and to rule on alternate methods of design and
construction, but with the proviso that the result should be not less safe
than if code language were followed literally, or less safe than "intended"
by the code --something like that. (It's in the administrative chapters.)

I would argue that the "reasonable person" engineer is still acting
reasonably by following a good faith interpretation by a well-informed
building official who is empowered to issue such interpretations, provided
this engineer is not turning an unreasonably blind eye to the quality or
fitness of the interpretation that was rendered. In other words, a
reasonable engineer would not take advantage of a fool of a building
official, or of an interpretation he obtained by  misleading and snookering
the building official. The engineer who would rely on an official's
interpretation should agree that the interpretation itself is reasonable
under the circumstances.

Yet it remains true that the merit every professional act depends on the
circumstances. There is no easy and certain form of conduct that makes one
automatically immune to being accused as negligent. There are engineers who
cater shamelessly to the negligence-claiming  industry, and I don't
understand why their noses don't grow faster than their loss of personal
integrity. One cannot avoid being menaced by their unreasonable claims that
one wasn't practicing as a reasonable peers do, and/or practicing in
violation of the code. One always has to be prepared to argue in defense
that one's conduct was appropriate and reasonable under the actual

In a recent case I know of, it was asserted that the engineer failed to
submit in a report what the building department required. The building
official, a PE for 35 years, was called as a defense witness, and testified
that the report in question was totally satisfactory to his department at
the time. The accusers and their expert had not known the facts, nor looked
into them, but decided on their own what the building department policy
should have been, and claimed it had been violated. 

In 1992, the PE Board sought to revoke a civil engineer's license on grounds
his designs of economical street pavement repairs in an impoverished private
residential community were not "standard practice". The Board meant it was
not standard CalTrans practice for heavily traveled state highways. They
never alleged his services fell below a standard of care, or lacked due care
under the circumstances, but wrongly held that negligence was not following
standard practice regardless of the situation. The engineer's attorney, a
retired deputy attorney general who had formerly served as liaison to the PE
Board, appeared in open session before the Board and explained they were
relying on an illegitimate, "underground" regulation in using that notion of
negligence. He said they had to use the BAJI jury instruction definition in
the absence of any proper enactment to the contrary.

The PE Board never did resolve any definition of negligence, but instructs
their hired experts that negligence is a violation of "standards OF
practice." They never accepted the word "care" in that expression, or "due
care", and they avoid mentioning the BAJI definition. But under recent
Legislative Sunset pressures, the PE Board is currently undertaking to write
for themselves new definitions of negligence and incompetence. Their liaison
Deputy Attorney General is helping them. The Legislative Sunset Committee
floated alarming draft definitions that to me would make mainstream seismic
design negligent for failure to fully eliminate seismic performance hazards.
This matter deserves SEAOC attention at all levels. The PE Board's next
meeting is Thursday and Friday of this week in Newport Beach, at the Sheraton.

Charles O. Greenlaw  SE   Sacramento CA