Five More Case Histories Refreshed

GBA Publications Committee

Learn from others. Don’t repeat the mistakes of the past!
GBA Case Histories are being used by our members for loss prevention discussions in support of professional development and mentoring. That is why GBA case histories are so valuable, and why GBA is updating them all, while adding new ones, too. Five more Case Histories have been re-issued.

Case History #71 (download)
A geotechnical engineer submitted its flawless subsurface exploration report which referenced an ASTM standard on soil classification. When a cost overrun occurred on the project, because a buried foundation was discovered, the assistant state’s attorney general handling the case read the report. He interpreted ASTM “references” in the standard to mean “incorporated by reference,” and so proceeded to read each of the 15 referenced standards. One of the 15 feasibly could have been interpreted to have placed a burden of performance on the geotechnical engineer which, if fulfilled, might have prevented the problem. Although the lawyer’s interpretation was unrealistic, it was realistic enough to stand up in court, the geotechnical engineer assumed, and so settled.

Case History #72 (download)
A Member Firm was negligent, its client said, because the firm had failed to follow the precepts of a draft version of the nascent GBA standard on performing a Phase I environmental site assessment. At trial, the defendant’s expert cited Recommended Practices for Design Professionals Engaged as Experts in the Resolution of Construction Industry Disputes and pointed out that the plaintiff’s expert had not established the standard
of care using methods discussed in Recommended Practices…, and therefore did not have a case. The judge agreed.

Case History #73 (download)
The client’s “hired-gun” expert criticized the Member Firm’s project manager of negligence as the expert  for the plaintiff-contractor because, in providing her opinions, she failed to recognize the importance of strict code compliance. He, on the other hand, “had based his opinions on his vast experience; inquiry into the methods used by others was unnecessary.” the Member Firm’s expert explained that in developing her opinion, she had followed recommendations for establishing the standard of care, as set forth in Recommended Practices for Design Professionals Engaged as Experts in the Resolution of Construction Industry Disputes. The client’s expert admitted he had not. The judge, swayed by the thoroughness and professionalism of the Member Firm’s expert, upheld the contractor’s claim.

Case History #74 (download)
The GBA-Member Firm, serving as a design/builder, retained a remediation contractor via an agreement that required the contractor to have written approval before pursuing a change. The engineer’s fill-in project manager wasn’t aware of the contract’s requirements, nor was the contractor’s fill-in manager. A major change was needed to complete the work and it was performed. When the client refused to pay the engineer, the engineer refused to pay the contractor, because a written change was not obtained. The engineer learned that sometimes the clearest, most explicit language might not be binding.

Case History #75 (download)
A state OSHA inspector issued a number of citations to a Member Firm whose personnel were performing a caisson inspection. Most of the citations were for various aspects of the work that simply had to be done if caissons were to be inspected. The OSHA personnel’s attitude was that caisson inspection was inherently dangerous and should not be done. The Member Firm learned the importance of dealing with OSHA via an attorney who understands the issues.

GBA Case Histories are FREE to all Members.

Access all GBA Case Histories: HERE