Shall vs. Should (Clarification)
Shall vs. Should (Clarification)
(OP)
thread184-274291: Shall vs Should. So what is the right thing to do when inspecting?
I started many months ago the above thread looking for some real clarification in reference to should vs. shall. Well I just recently obtained such clarification by means of law.
I have always trained all my inspectors to indicate deficiencies using the word shall.
During a recent deposition the defendant's attorney(sprinkler contractor) indicated that he is not authorized to use the word shall during reports because he is not entitled to enforce any codes.
The plaintiffs's attorney (property owner)indicated that if they new that this deficiencies where mandatory as shall means they would have address these issues long time ago.
At the end of the case the Judge ruled that the defendant (sprinkler contractor)mislead and malpractice the property owner by not properly indicating difference between recommended and mandatory.
He also indicated that by using the word shall you are not enforcing anything but rather it represents the actual wording from the actual as is written.
Also he mentioned that the only means of indicating enforcement is by executing on paper an abatement date. Contractors can not provide that.
As an expert opinion I am glad to provide this information since the whole country is confused about this issue.
I started many months ago the above thread looking for some real clarification in reference to should vs. shall. Well I just recently obtained such clarification by means of law.
I have always trained all my inspectors to indicate deficiencies using the word shall.
During a recent deposition the defendant's attorney(sprinkler contractor) indicated that he is not authorized to use the word shall during reports because he is not entitled to enforce any codes.
The plaintiffs's attorney (property owner)indicated that if they new that this deficiencies where mandatory as shall means they would have address these issues long time ago.
At the end of the case the Judge ruled that the defendant (sprinkler contractor)mislead and malpractice the property owner by not properly indicating difference between recommended and mandatory.
He also indicated that by using the word shall you are not enforcing anything but rather it represents the actual wording from the actual as is written.
Also he mentioned that the only means of indicating enforcement is by executing on paper an abatement date. Contractors can not provide that.
As an expert opinion I am glad to provide this information since the whole country is confused about this issue.





RE: Shall vs. Should (Clarification)
He can't force anyone to do something. He did pointed out the deficiencies, perhaps he failed to indicate it was required by code?
Rafiq Bulsara
http://www.srengineersct.com
RE: Shall vs. Should (Clarification)
Example: painted heads should be replace when instead the nfpa says shall.
Gauges should be calibrated or replaced instead of shall
Recalled products should be replaced instead of shall
The judge indicated that by doing so the contractor mislead the property owner and caused exposure to property liability
When they asked me I said:
The proper way is to write as is shown on nfpa 25
RE: Shall vs. Should (Clarification)
Rafiq Bulsara
http://www.srengineersct.com
RE: Shall vs. Should (Clarification)
I got this information from the NFPA so read carefully:
By 1990 the Standards Council realize that NFPA needed to consolidate all of its documents of Inspection, Testing and Maintenance of Water Based Systems into a single document and that the document should be a standard rather than a recommended practice. By the end of 1991 NFPA 25 was approved by the NFPA committee. It was first release on February 1992.
Since then NFPA has continue to enhance such standard to better mandate requirements vs. recommendations.
With that said the NFPA 25 is the mandatory requirement.
Now just like the Judge said:
If you tell me on any inspection report that I should do something then I am going to consider but not necessarily address immediately.
If you tell me that these items shall be address then we move forward with how to fix it.
Then again just because I said shall does not mean enforcement.
Appeal? they also lost their license for 6 months on top of punitive penalties, etc.
My point is that if we teach our inspector to write just like it shows on the standard we could have less liability.
RE: Shall vs. Should (Clarification)
When we consultants do "studies", we routinely write, at least I do, as to what the Owner should do in "studies", not necessarily shall. On the other hand when are the designers of a specific project giving instructions, the "shall" is typically used.
Rafiq Bulsara
http://www.srengineersct.com
RE: Shall vs. Should (Clarification)
That was the strongest argument in the case.
RE: Shall vs. Should (Clarification)
Those in management have to do a better job in bullet proofing their inspectors against legal action, The one thing you do not do when attempting this is use "common sense" or try to apply the concept of "right or wrong.
There isn't any right or wrong, there isn't any room for common sense there's only the idea of resolving conflict and in court that can always go either way.
Those of us who have licenses or certifications have to attend a certain number of hours of "continuing education" every few years and the specified hours are always to short and should, in my opinion, be tripled. How about 32 hours on how to be a better inspector followed by 96 hours of how the inspector should bullet proof himself to avoid law suits?
Sometimes I read things on our inspection reports and all I see is red. Bless their hearts, my inspectors are trying to do the very best job they can, but if anything ever goes really wrong all that good will they tried to build will evaporate like the morning mist on a hot summer day.
RE: Shall vs. Should (Clarification)
I came up with 3 main solutions to avoid legal litigation.
1) Only Certified Inspectors to perform anything over quarterly, semi-annual, etc. (inspections and testing.)
2) Only take content from the standard and make that a company policy. Meaning every inspector must see the same deficiencies and it must be written the same way to maintain consistency.
3) Continuing Education must be extended. Promote and require in-house testing more often to prepare for these issues.
Listen I know we are all humans but that does not excuse our responsibility to deliver as promise.
Use every tool possible within the organization to keep our guys at the top of their games.
This case was very hard for me because I was hired by the plaintiff. As a licensed individual I dont ever want to be on the defendant side.
RE: Shall vs. Should (Clarification)
"shall" is legally mandated
RE: Shall vs. Should (Clarification)
It is what it is. Can not change the code but you can change your approach.
RE: Shall vs. Should (Clarification)
For instance if I inspected a building where a closet does not have a sprinkler, is it not acceptable to put in the recommendation section:
"Provide sprinkler in entry closet per NFPA 13 requirements."
or should it read:
"Sprinkler shall be provided in entry closet per NFPA 13 requirements."
Typically when we run into something like this we make it abundantly clear to the owner that the work needs done and we make sure it is done as soon as possible. Still, for the times when they want to dawdle around forever I'd rather that we cover our butts from a potential lawsuit. Are both statements above acceptable?
RE: Shall vs. Should (Clarification)
RE: Shall vs. Should (Clarification)
First of all it is not the intent of NFPA 25 to identify installations flaws such as the one you described however by sending a separate letter indicating such current deficiency. When that building was built there is a possibility that NFPA 13 did not require sprinklers in closets. You are not required to bring systems to new codes. And yes you could put that on a report as a recommendation.
What we are talking here is when a NFPA 25 deficiency is noticed but instead of telling the owner on the report that the code says shall you tell him should instead.
That indicates contradiction and misleading the end user.
I also would like to make clear that if you start writing NFPA 13 deficiencies on sprinkler reports you could be more liable vs. not wring anything at all.
RE: Shall vs. Should (Clarification)
Look for NFPA 13 Deficiencies
RE: Shall vs. Should (Clarification)
As a licensed individual, I would only want to be on a defendant's side.
The problem with inspections is that you have a $1000 fee and virtually unlimited liability if you don't address this very specifically in your contract or terms of service.
Any inspection report must be very clear about any perceived Code violations.
David Castor
www.cvoes.com
RE: Shall vs. Should (Clarification)
Read my new post