Relying on Survey - Standard of Care 2

[bookowski]

I have been asked to review the following project/dispute:

Project was a vertical addition to an existing rowhouse type structure. A survey was performed and a signed/sealed survey provided. During construction it was discovered that the adjacent property was encroaching/leaning into the site such that the new steel columns proposed by the engineer on the job could not go in. Job was delayed, steel had to be moved etc. and now the owner is suing the engineer and surveyor.

The owner had a report done by an engineer, the conclusion being that the original structural engineer did not exercise his standard of care by verifying the site conditions and catching the encroachment. Note that this is a matter of a couple of inches - not something visually obvious without close inspection. I am reviewing the work/report for the original engineer. It seems clear to me that the engineer should be able to rely on surveys/info provided to him unless.

Is there any standard language/reference of standard of care where I could find this?

 

[Ron]

bookowski....in general, a structural engineer is not responsible for horizontal locations of a building. He relies on the surveyor, the civil engineer and the architect for that control. I agree with you.

For this project, you have a lot of difficulties to deal with. I assume these are "zero lot line" structures, without reasonable separation of the structures. The structural engineer was given a building to build upward, with a reasonable presumption of a correct survey. The surveyor, knowing that the intent was to build upward, should have checked for encroachment.

In my opinion, the structural engineer is not responsible for lateral location of a building. If the building is tall enough to have reasonable drift and close proximity to other structures, the structural engineer must check the lateral drift and potential for encroachment. Outside of that consideration, I wouldn't think the structural engineer should have the responsibility and I do not believe that for a low rise building, this is a breach of the standard of care.

I do believe the surveyor has responsibility and I believe the adjacent property owner and its surveyor have responsibility as well; however, it will likely take a court decision to clear it up. Hopefully the structural engineer has competent counsel (should be defended by his/her insurance carrier).

Do you know the reason the other structure is "leaning" into the new structure? Maybe there's a bigger concern of structural competence that someone needs to check and resolve.

 

[hokie66]

As to the reference you want, I don't know if it exists. But it is a legal issue, so a good property/construction lawyer would be your best source.

I believe the same way as Ron that the engineer is entitled to rely on the survey, but now that there is a lawsuit, it will have to be defended.

 

[JAE]

bookowski,

Just looked through the 2010 version of AISC's Code of Standard Practice (found here:

http://www.aisc.org/WorkArea/showcontent.aspx?id=25256)

Two sections seem to refer to surveying but not with any definitive results:

First - section 1.7.3:

This states that the fabricator and erector don't have the responsibility but it lies with others - possibly either the contractor/owner/engineer.

Second - Section 7.2:

Section (b) of this states that the general contractor needs to ensure no "overhead obstructions".



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[JAE]

There was also this section (7.5.4) which talks about surveying existing anchor rods, etc. which is to be done by the contractor.

This at least suggests that field condition verification is really the responsibility of the GC. I looked through the newer 2016 version (yet to be published) and it is similar:

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[bookowski]

Thanks JAE for digging for references and Ron for the input.

On my general notes I have a statement that I have relied on information from others and is assumed to be accurate including but not limited to: and then I list survey date/company, geotech report date/company etc. This engineer did not have this type of note but did have notes that the contractor should verify all dimensions prior to steel fabrication.

Both sides already have attorneys. The neighbor already was required to have another engineer evaluate their property and ok the lean as is.

The report by the opposing engineer does not offer any references or precedents but states that an engineer familiar with zero lot line sites should verify encroachments etc. He also goes on to state this was also a violation of the code of ethics - quite a leap. For the most part it reads like a report that would be willing to say the reverse depending on who is writing the check.

I'm hoping to find some kind of reference/document that outlines typical responsibilities for the various parties. It seems clear that you should be able to rely on your survey - but it would be nice to have something to back up what appears obvious to me.

I feel lucky to have never found myself on the receiving end of such a situation. A bit scary to me that another engineer would write a report stating ethics and standard of care failure for something like this - and your only hope is that a judge knows enough to sort it out...

 

[hokie66]

In making the statement about the code of ethics violation, the other engineer may have placed himself in violation, and I think a court would frown on that in an expert witness.

 

[Teguci]

"Engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers. Engineers who believe others are guilty of unethical or illegal practice shall present such information to the proper authority for action." - See more at:

http://www.nspe.org/resources/ethics/code-ethics#sthash.tCrj5Xgv.dpuf

So unless he has presented information, and I don't think just his sayso about Zero Lot Sites is enough, then the local board should be reviewing this statement.

As for the engineer, I don't believe it is a standard practice of care for an engineer to take a transit to a building site and double check the measurements from a site survey plan, much less eye up the adjacent vertical structure for plumb. No question in my mind. This engineer is not responsible for any damages.

For me, the real argument is whether it is the responsibility of the surveyor to catch the adjacent structure's lean on the site plan. How would they even show that on their plan view? Do they show the lean from utility poles, signs, other structures?

I'd be interested to hear from surveyors on this.

 

[racookpe1978]

Is the other structure preventing "erection" of the new beams and columns? (Crane rotation, alignment, movement from truck, movement of the truck itself?)

Or is the other structure actually across the new building's column lines and arch. wall lines and planes? Could the new building be causing any movement of the old building through settlement at the foundations or basement walls or piers?

 

[RobertHale]

Here's a thought, Flip the argument. What if the structural engineer performed a site survey? Would the survey stand to scrutiny in terms of state law? In my state (Georgia) only registered land surveyors can practice land surveying tasks including "Conducting horizontal and vertical control surveys, layout or stake-out of proposed construction, or the preparation of as-built surveys which relate to property, easement, or right of way boundaries;". In my opinion, if the engineer can't perform a legal survey inside the limits of structural engineer licensure, it would be unreasonable (and potentially unethical on the part of the engineer) to conduct his own survey and design based on that survey. The land surveyor held himself out as a professional expert; this is the consequence of his mistake. I don't know if this is very helpful.

 

[TehMightyEngineer]

I was thinking the same thing Robert. How can you verify his work without doing surveying yourself? Do they expect you to hire a second surveyor to check the first?

You can flip it another way as well. What if it was the surveyor being asked to rely on your engineering? Lets say you design a CMU wall along the perimeter of the property and due to an error you find that you need 12 inch blocks instead of 8 inch blocks after submitting the design. You revise your drawings, and the contractor builds it this way. If the surveyor wasn't told about the change then the wall now encroaches on the neighboring property, and the owner sues the surveyor. This isn't his mistake though as he relied on you to provide the required wall thickness. Should he have done his own calculations to verify the wall size? No, that's clearly beyond his scope and could be considered engineering.

Professional and Structural Engineer (ME, NH)
American Concrete Industries

http://www.americanconcrete.com

 

[eheiberg]

Tangent: In the early 1960's My old boss's family was building on a lot in NYC. They found that the adjacent building encroached on their property. They sued the neighbor basically saying "move your building or pay for our property". From the point in time that they noted the encroachment on they paid nothing for the construction of their building.

 

[Archie264]

Bookowski, it sounds like there might be some unreasonable people involved in this project. Are you sure you want to touch this thing?

 

[Hokie93]

If you don't already have it, you should obtain a copy of CASE Guideline 962 - National Practice Guidelines for the Structural Engineer of Record. This document is produced by a CASE (Council of American Structural Engineers) committee. A discussion of reliance on information furnished by others is included in Part I. The salient portion states:

"In the preparation of contract documents, the SER relies upon the accuracy and completeness of information furnished (by others), including topographic and boundary surveys, weights, building dimensions, sizes... The provider of this information to the SER is solely responsible for the accuracy of the information being provided to the SER".

This is helpful but not has helpful if you could find similar language in the PE Board Rules/Regulations and/or statutes in the jurisdiction in which this project is located.

 

[bookowski]

Archie - I agree and no but it's an old colleague of mine and I'm not good at saying no. I also feel the need to counter the say anything if you pay me report from the other side. The owner sued everyone - neighbor, engineer, surveyor, even the geotech. They were immediately pushing everyone to settle - basically a fishing expedition. I'll probably regret being involved but I may find myself on the other side someday.

Hokie - Thanks, that is great info. I'll get that document.

 

[Archie264]

Bookowski, good on you. I knew an engineer who did expert testimony from time to time as such cases arose. He was well-regarded and, as far as I know, was never proven wrong in court. His philosophy was simple: he would call it as he saw it and let the chips fall where they may.

 

[TehMightyEngineer]

If it's an old colleague then make sure that relationship is disclosed to all involved.

Professional and Structural Engineer (ME, NH)
American Concrete Industries

http://www.americanconcrete.com

 

[Ron]

bookowski....

A common definition of our standard of care is to provide that level of service [highlight #FCE94F]ordinarily[/highlight] provided by other competent members of our profession, providing similar services in the same locale and under the same or similar circumstances. The reasonableness of this definition is that it requires ORDINARY care, not perfection. The standard of care is our boundary between making a mistake (which anyone can do) and negligence (something we all want to avoid). Our standard of care does not require perfection, it only requires that we use a reasonable approach to our projects that other engineers given the same or similar conditions would do.

Most of my practice is in the forensic area. Occasionally I'm asked to opine on an engineer's compliance with our standard of care. I don't take that lightly. In some cases it has been clear that the engineer was negligent, while in others it is not so clear. If I can't be clear about this, I explain that to the attorney and we don't pursue it. I don't give opinions on whether the engineer was negligent (that calls for a legal conclusion and I'm not a lawyer). My opinion is simple and is framed by the definition given above. No single project, client, or opinion is worth compromising my reputation or integrity. I provide engineering consultation for both plaintiffs and defendants, but my answer has to be the same for the task I'm given. Sometimes that answer fits the defense, sometimes the plaintiff. I don't care which it fits. It is my answer. If others agree, fine. If they disagree, fine. The signature on a check should NEVER enter into the development of our opinions....only the engineering interpretation of facts should guide those opinions.

It is disturbing to hear about engineers willing to compromise their opinions for the sake of a few bucks. It makes no sense to me.