George, I'm not trying to argue the point. I admit you are correct in your
points. BUT, liability has to be proven in court but responsibility need
only be suggested. To get from the accusation to a decision of not liable
requires a trial by jury or an admission of guilt. In any event, the cost to
prove innocence of the charge is generally much greater (due to, as others
noted, the abuse of a contingency). Therefore, settlements generally are
made with no admission of guilt and at a cost considered much less than full
It's a hit and run. Accuse the professional, settle for a fee regardless of
responsibility, and close the case.
The one point that you did not mention is that an attorney accusing and
engineer of wrongdoing must have a declaration by another engineer that
confirms his responsibility. This is the gray area where the ambiguity of
the code leaves sufficient argument to point blame at the most innocent of
engineers if they design any less than what is considered the minimum intent
of the code. This is an important point in my original argument.
From: GEOHAK(--nospam--at)aol.com [mailto:GEOHAK(--nospam--at)aol.com]
Sent: Tuesday, February 22, 2000 11:49 AM
To: Ben.Yousefi(--nospam--at)ci.sj.ca.us; seaint(--nospam--at)seaint.org
Subject: Re: Negligence per se ( another misconception)
Engineers get pulled into litigation against builders by way of a
cross-complaint; i.e. the builders get sued, then they turn round and bring
all sub-contractors and engineers into the litigation (liable or not,
actually at that time liability is not known yet). It is a common practice,
and attorneys do it to avoid a legal malpractice action against them by
owners,( it's a catch 22, you see it?)
Now, and back to the genesis of this discussion, is the EOR liable for not
following the black letter of the UBC ( assuming an equally safe design has
been provided as Dennis Wish was suggesting) ?
My answer is NO!
Unless his design PROXIMATELY caused the damage complained of, the EOR
be held liable. Thus, because the design does not fall below the standard
care( provided the design is a safe design equal to or superior to what UBC
provided) the EOR is not negligent, hence not liable.