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Listening to your client even when they are wrong

Discussion in 'Architects & Engineers' started by jar546, Feb 18, 2019.

  1. Mark K

    Mark K Platinum Member

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    First you cannot transfer the liability to the reviewer and the building official because they have none and cannot legally authorize anything not in compliant with the code. In some cases they can make a creative interpretation of the code but that only goes so far.

    It is well established that issuance of a building permit is not considered a statement that you have a code compliant building.

    You might try to invoke IBC sections 104.10 and 104.11 but given that the ADA requirements are ultimately a federal requirement these sections may not be available.

    There are inevitably situations where the reviewer did not or chose not to see a code violation but while that may allow you to build the project in violation of the code the project would still be in violation of the code. Raising the issue with the plan checker does not allow him to ignore it.

    Designing to minimize the cost of later making the building code compliant will minimize you liability if the violation is later identified. On the other hand any record that the design professional knew that the construction documents were non compliant would be evidence of negligence per say which means you are automatically guilty and will need to pay.

    You should probably consult with an attorney.
     
  2. jar546

    jar546 *****istrator

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    No liability? Based on what? I can tell you with 100% certainty that they do and there are court cases to prove it. Maybe hearsay but not in real life.

    Now this I can agree with.
     
  3. Jay

    Jay Sawhorse

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    Follow up......Met with Building official today to show him how preliminary designs were shaping up and ask if he saw any major "red flags". In particular, I pointed out the pending design for the non-accessible bath. He says it is not allowed and needs to be accessible. He also mentioned the possibility of moving it over towards the other group of bathrooms, so they were all accessed from the same hallway, that it could remain as a non accessible unisex bath with certain provisions. I will most likely enlarge the room so that it is accessible and call it a day.

    Appreciate the input I have received here.
     
    jar546 likes this.
  4. jar546

    jar546 *****istrator

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    And I appreciate your honesty and respect your decision (who am I anyway ) so thank you. We have used the grouping method before and it can work under the right circumstances.
     
    Jay likes this.
  5. ADAguy

    ADAguy Sawhorse

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    "Voices of Reason" carry the day. Nice job guys.
     
  6. Jay

    Jay Sawhorse

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    Nice to have some camaraderie and back up, especially being a one man firm over here.
     
  7. Mark K

    Mark K Platinum Member

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    Jar

    Building officials may be sued but in most states, especially in California, these cases almost without exception get thrown out. While the specifics may vary from state to state there is a basic principle that a public official performing his job is not liable.

    The question of building official aside, the liability of the engineer is separate from what the building official does. Thus the engineer cannot transfer his liability to the building official. Remember that when a professional engineer is sued for negligence it is the engineer not the firm that is sued. In most cases the engineer's firm and the errors insurance companies pay the judgement but formally it is the engineer who is personally liable. So an individual engineer without errors and omissions insurance who has incorporated his firm could find that they would take his home and personal assets in the case of a judgement. Suggest that it is different for building officials.

    Also remember that for engineers there is effectively no statute of limitations for certain classes of claims.

    Building officials may worry about liability, and there may be antidotal cases, but their concerns pale with respect to what design professionals have to deal with. So relatively speaking the building officials have no liability.
     
  8. jar546

    jar546 *****istrator

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    When you are a Sawhorse you can read the post I made in that section concerning a court case (one of two). Until then your opinion is just that an opinion or theory but in reality there is liability and I can attest to that directly. Let's just agree to disagree.
     
  9. Mark K

    Mark K Platinum Member

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    Jar

    It would be useful if you would make the court case references available to us who are not sawhorses. Until then I am at a disadvantage. If these case were appellate rulings they are easily accessed. Court opinions that were not appealed also tend to vary much more in the outcome. Remember the law is often subjectively interpreted. I have not denied the possibility of isolated cases but if you look at the big picture you will find I am right.
     
  10. jar546

    jar546 *****istrator

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    Regardless of the outcome of these cases against inspectors, plan reviewers and code officials, they still proceed forward, and cost everyone money and time in defending them. We can't lose sight of the fact that there are cases that were in federal court and the amount of time that was spent preparing massive amounts of documents that were under subpoena, the days and sometimes weeks spent in deposition, all of the fact finding, and responses required. Until we venture outside our own bubble we will never see everything else outside of it and the bubbles of others.

    I have done expert witness against an inspector that ended up being decertified by the state and lost his livelihood as a result of the litigation process and that is just one factual example.
     
  11. mtlogcabin

    mtlogcabin Sawhorse

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  12. Mark K

    Mark K Platinum Member

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    I predict that if the Aspen case was not thrown out do to the statute of limitations the building inspector would have been found not liable on other grounds. The case was more about trying to find someone responsible and not about the law. It did not help that the grand jury had unrealistic understanding of the building officials role.

    If the building official had been found guilty and if the appeals court had sustained the ruling it is almost guaranteed that the legislature would have changed the law to address this problem.

    You cannot prevent this ligation from happening any more than you can prevent being hit by a meteor.

    Yes there are problems with the legal system and anybody can sue you. Yes there is fallout for the innocent but unless you hide under a rock there is little you can do.

    The question is what can you do that makes sense.

    The problem is that building officials and plan checkers hear about these cases but do not understand the legal issues and act in ways that not only are improper but that cause problems for others involved in the project. It is not uncommon for building officials to try to impose responsibilities on engineers which are not part of their scope. They also try to make the engineer responsible for things outside of the engineer's control. These practices will not reduce the likelihood of litigation nor will they prevent the building official and inspectors from being found guilty.
     
  13. jar546

    jar546 *****istrator

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    Before we lose track of this thread and derail it, please remember that plans examiners are not making unruly decisions based on fear of litigation but rather on their interpretation of the codes and how it is applied and often the BCO above them sets the tone for the type of enforcement.

    The issue with this thread is all about design professionals intentionally submitting non-compliant drawings to pacify their clients rather than holding the line with their client.
     
  14. ADAguy

    ADAguy Sawhorse

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    That would be professional "ethics" right vs "standard of care" for architects which is set by that which is done by others within a similar area.
    That being said, if others do as their clients say, is that really a defensible argument?
     
  15. tmurray

    tmurray Sawhorse

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    Do you folks not have joint and several liability down there?

    This is where the plaintiff sues the parties responsible for their damages as one. So in our case, someone would sure the building owner, RDP(s), and the building inspector (municipality) at the same time. The courts then assign each party a portion of the blame and each party is expected to pay their share of the damages. However; if one party is unable to meet their share of the costs, the plaintiff is eligible to collect the damages from the other defendants. This gives rise to what is refereed to as the %1 rule: if someone is %1 negligent, they could be responsible for paying %100 of the damages. In these situations, the municipalities are typically the ones with the "deep pockets". As Mark K said, an RDP might have his home on the line, but if we are talking about multi-million dollar damages, most homes aren't going to count for much.
     
  16. ADAguy

    ADAguy Sawhorse

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    Plaintiffs counsels down here prefer the "shotgun" approach. Sue all parties to see who has insurance or not, then use the initial recoveries to fund the remaining actions.
    This why CM/multiple prime is being used more often, leaving the client to hold the bag.
     
  17. steveray

    steveray Sawhorse

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    [A] APPROVED. Acceptable to the building official.......Nothing about the RDP there.....
     
  18. ADAguy

    ADAguy Sawhorse

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    What is the "legal" definition of "acceptable" in CT?
     

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