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Re: Soils Reports under CBC 1802.2

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Brian-

Sigh.. IANAL and , apparently neither are you. From an on-line legal dictionary: Malice aforethought is the the deliberate intent to cause death or great bodily harm to another person before a person commits the crime. Malice aforethought is an element that must be proved in the crime of first degree murder. This description of the perpetrator's state of mind basically means that he or she had an intent to inflict injury without legal justification or excuse (legal justification included such defenses as self-defense, while excuse includes mental illness and duress).

Malice aforethought is comprised of any one of the following three elements: (1) an intent to kill; (2) an intent to inflict grievous bodily injury; or (3) an intent to act in a manner that creates a plain and strong likelihood that death or grievous harm will follow. Of these three prongs of malice, the first two prongs require a specific intent on the part of the defendant, measured subjectively, while the third prong only requires a general intent, measured both subjectively and objectively. Accordingly, malice aforethought may exist without an actual intent to kill or do grievous bodily harm, if there is proof of the "third prong" of malice. This simply means that the perpetrator knew of circumstances that a reasonably prudent person would have known created a plain and strong likelihood of death or grievous bodily harm resulting from the perpetrator's act. The law can infer malice from circumstantial evidence, such as from the intentional use of a deadly weapon.

How any reasonable person could get from that, to an unwillingness to make simple decision about probable soil conditions, is beyond my understanding. Having participated in many conferences with plaintiff attorneys & court appointed Special Masters I am fairly familiar with the concept of Sovereign Immunity. City's and Code Officials are never targets in defect litigation suits even when they make egregious errors in Plan Check &/or inspection. I suppose if you were taking bribes there might be liability, but not from the ordinary exercise of judgment in your duties.
Chuck Utzman
____________________
From: Brian Gerving [mailto:bgerving(--nospam--at)ci.eureka.ca.gov] Sent: Friday, February 15, 2008 2:01 PM
To: seaint(--nospam--at)seaint.org
Subject: RE: Soils Reports under CBC 1802.2

Why the indecision?  Building officials certainly do have personal liability
if malice or forethought is involved in a given decision.  Discussing issues
like this ad nauseam, which believe me, building officials around the state
have done, definitely qualifies as forethought.

Regarding the ability of building officials to waive soils reports, please
read the text of the exception to Section 1802.2:

“The building official need not require a foundation or soils investigation
where satisfactory data from adjacent areas is available that demonstrates
an investigation is not necessary for any of the conditions in Sections
1802.2.1 through 1802.2.6.”

Note that the exception does not apply to Section 1802.2.7, which is what
triggers soils reports for structures assigned to SDCs D, E, and F.
Brian



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