Page 321 - Forensic Structural Engineering Handbook

10.10 CAUSES OF FAILURES

All Parties
All parties on a construction project have responsibilities to one another and to the public.
They have obligations to the other contracting parties and to a wide range of third persons
as well, such as workers, pedestrians, and adjoining property owners. As regards the con-
tracting parties, their responsibilities to each other are governed by the contract. These
include the duty not to interfere with the work of the trades, and the duty to cooperate with
all other parties to allow proper progress of the work.
All contracting parties potentially can be held liable to third persons who are injured or
damaged as a result of the contracting parties’ failure to exercise the standard of care and/or
duty to perform required by either common or statutory law. For example, the designer
or builder of a sidewalk bridge may be liable to pedestrians if the bridge collapses.
Similarly, an excavation contractor who fails to adequately underpin an adjacent structure
will be liable to the owner of that adjacent structure for any damage caused by the contractor’s
neglect. In some states, the violation of a statutory duty (e.g., to adequately underpin) is, in
and of itself, conclusive proof of negligence. The practical effect of this is that the injured
party has only to establish the amount of damages in order to recover—there can be no issue
as to fault or liability. In other states, violation of a similar statute is considered merely as
an evidence of negligence to be considered with all other evidences, so that the injured
party’s prospect for recovery is far less certain.

The Owner
The owner is concerned with temporary structures only insofar as they are necessary to
the construction of the permanent product. Therefore, the construction contract docu-
ments will often simply provide what must be done rather than detailed instructions on
how to do it, e.g., “earth banks shall be adequately shored” or “adjoining structures shall
be adequately protected.” Under this performance-type specification, the involved con-
tractors are responsible for meeting the required result, and they, not the owner, are
responsible for the means and methods used to achieve it. This is in contrast to the tech-
nical or detailed specification wherein the owner or the designer specifies the method to
be used and is deemed implied to warrant its adequacy. The difference in the owner’s
responsibilities can be seen as follows: If a proper performance specification is being
used, then the owner bears no responsibility if the contractor’s work fails unless the
owner was negligent in hiring the contractor or, notwithstanding the written documents,
the owner undertook direction or control of the contractor’s work. If, however, a
detailed specification is utilized, then the owner bears full responsibility for any defi-
ciencies in the contractor’s work, as long as the contractor performs that work strictly
as specified.
An owner’s responsibility to third persons is usually secondary in that most lawsuits
arising out of temporary construction work, while naming the owner as a party, are attrib-
utable to negligent performance by the contractors or to the design deficiencies by the
responsible architect or engineer. Thus, even in the absence of a contractual indemnity
provision, the owner can shift the liability to the party ultimately responsible, assuming that
party has the financial resources to shoulder the responsibility. In other words, although the
owner is primarily liable to the injured party, the owner has a right of indemnity or contri-
bution from the party who was negligent.
However, by statue or legal precedent an owner may assume strict liability, regardless
of fault, for such things as worker safety or ultrahazardous activity conducted on the owner’s
property.