Selected Case Studies
LePatner Corporate Construction Counsel Case Studies (PDF)
This PDF document contains recent case studies involving the clients listed below. To view the document, you must have Adobe Acrobat Reader which can be downloaded for free from the Adobe Web site.
- United Nations Mission to Kosovo
- thirteen, WNET New York
- Barnard
- Rosewood Hotels & Resorts
- conEdison, Inc.
- The Carlton
- Starwood Hotels & Resorts
- DaimlerChrysler
- OENJ Cherokee
- The Cooper Union
- Instituto Cervantes
- Millennium Partners
CASE 15
from Structural & Foundation Failures, A Case Book forArchitects, Engineers and Lawyers.
By Barry B. LePatner, Esq. and Sidney M. Johnson, PE.
Published by McGraw Hill, New York.
TYPE OF FACILITY |
Apartment Building |
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TYPE OF PROBLEM |
1. Buckling of columns |
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SIGNIFICANT FACTORS |
A. Marginal quality of the plans |
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NARRATIVE One of the most difficult moments in the life of design professionals must occur when they are confronted with the existence of a substantial failure on a project they have designed. Faced with the prospect that a failure has occurred, and that the owner has, or will, incur substantial costs for remedial repair work, an initial reaction of despair is not uncommon. This next case involved a situation where at the outset even the attorneys for the architect were of the belief that substantial liability would result, only to find that by pursuing the case diligently, a favorable, almost nominal, settlement of the action was effected. The project involved the design and construction of an apartment complex comprising two four-story, 42-unit buildings, a five-story, 51-unit building, and a one-story clubhouse. The buildings were wood frame, with bearing walls and Lally (concrete-filled pipe) columns. Plans, including all structural designs, were prepared by the project architect. Under his agreement with the owner, the architect had no responsibility for inspection obligations during construction. The pleadings ultimately filed in this action against the architect alleged that the plans and specifications were so negligently and carelessly prepared that columns in certain parts of the buildings began to crack, buckle, and give way, requiring the cessation of construction, shoring of columns, and installation of heavy-duty columns to replace those originally specified by the architect. It was further contended that a wall began to tilt during construction, causing the owner to halt work to reinforce and correct latent deficiencies. In connection with the clubhouse, it was asserted that the architect had failed to specify foundations or footings under the block walls of a shower room, causing the floor to sink and crack and the block walls to fall. Damages of $500,000 were sought against the architect. Specifically, the owner contended that the plans provided by the architect for the four-story apartment building were defective in that they called for 3-1/2 in Lally columns, which was deemed by the ironwork suppliers to mean lightweight Lally columns. Thus, lightweight columns were installed and in place during construction. It was a local building inspector who noted that these columns appeared to be undersized and recommended that heavier weight (same diameter, but greater wall thickness) columns be installed. As a result of this removal and replacement, the owner contended that a 4- 1/2 to 5-month delay in occupancy of the buildings occurred. With respect to the design, the owner asserted that the architect's plans were defective in that they failed to provide for a joist of sufficient strength to support a 20-ft span at the point where the entrance foyer met the first-floor corridor, and that the same defect affected each of the floors above. It was argued that the insufficient strength of the joist caused the building to sag in the middle, threw apartment doorways out of plumb, caused cracks and openings in the drywall, and also resulted in uneven floors. Similar claims of design defect were asserted in regard to several of the other buildings. Additionally, it was contended that one of the buildings had begun to list, causing a Lally column to bow and supporting concrete walls in a portion of the building to lean dangerously. It was contended that an outside expert was called in, following which steel plates were welded to the sides of the Lally columns and an additional wall was installed to retain the shifting wall. In connection with the clubhouse, it was asserted that the plans were inadequate in that the 4-in concrete floor which was poured in the basement was not strong enough to support the inner cinder block walls. Consequently, the floor settled, causing certain plumbing pipes under the concrete floor in the showers and toilets to break. This resulted in flooding and further settling. It was contended that no proper footing had been placed under the floor and that this, in turn, caused the floor to settle and the pipes to break. Certainly, with all of these defects abounding, it was with a degree of trepidation that investigation on behalf of the architect into the background of these matters was commenced. The first order of business required the retention of an outside expert to furnish an opinion of liability. This proved to be an extensive task, but ultimately a written report was received, digesting the various claims and furnishing a detailed analysis of each. Insofar as the architect's plans were concerned, the expert report contained the following commentary: The plans reflected standard architectural design relative to construction requirements employing the normal practice of using shop drawings prepared by the material suppliers. Traditionally, material suppliers (concrete reinforcing steel, structural steel, etc.) submit shop drawings to the general contractor showing complete details for construction. Upon review and approval by the general contractor these shop drawings are then submitted to the architect for his approval. The architect's approval of these shop drawings indicates that he has checked all solutions as well as details for conformance to the design requirement. Thus, until the architect approves all shop drawings prepared by each material supplier, his design is not completed. Construction generally does not begin until the contractor has received structural type shop drawings approved by the architect. The expert concluded that the structural plans of the architect were not at fault; rather, he determined that the problems encountered were caused by changes made by the owner and/or contractor in the field during construction, which varied from the plans prepared by the architect. Armed with this information, counsel for the architect went forward to defend against this action by the owner. During the remaining pretrial period, and during settlement conferences with the judge who was to try this case, the owner was made to realize that his claim for damages against the architect, though initially capable of supporting a substantial recovery, could be successfully defended against. Before the trial could be held, it was learned that the owner had sold the apartment complex and, although he contended that he had not made a profit, agreed to settle this action for the relatively nominal sum of $14,000.
TECHNICAL ANALYSIS The first issue in this case is the deficiency in the size of the Lally columns. The contract plans indicated a diameter (3-1/2 in), but no weight. The contractor (who was, in fact, also the owner) did not ask for a clarification, but installed the lightest weight section. Analysis indicated that, if everything else had been perfect, the lightweight section could have held the load. This is expecting too much. As noted in the Narrative, at the building inspector's behest, heavier sections were actually installed. Still, one or two columns bowed and had to be plated. The extent to which shoddy workmanship may have contributed to the problem was never resolved, but if the apparent deficiency was detected by the building inspector merely on the basis of a visual inspection then it must have been a gross deficiency indeed. Curiously, the architect insisted that it was the responsibility of the contractor to indicate the weight of column required. The cause of the second issue, the sagging of the ceiling over the lobby, was never identified. It may have been due to failure to design for the weight of the nonbearing partitions which were located on all floors above the lobby, but which were omitted in the lobby space. The cause of the settling of the clubhouse floor was variously attributed to the lack of compaction of the soil under the slab and to the failure to provide footings under the interior masonry partitions. It was claimed that the 4-in slab was inadequate to function as a footing. The plan of the clubhouse is shown in Figure 15-2. The matter was never resolved.The cause of the lean of the foundation walls can be seen by reference to Figure 15-1. It appears that the walls may have been backfilled before the floor system was in place to provide necessary anchoring and bracing.
LEGAL ANALYSIS Before a complete legal analysis was possible in this case, it was necessary to understand the role played by the parties and the services each performed. On this project, the owner acted as his own contractor and was instrumental in making decisions throughout the design and construction process. It is not uncommon for an architect to prepare all plans and specifications on a residential complex of this type. Usually, structural design of this nature is not complex and can be handled efficiently by the architect's own offices. The architect's contract, however, did not provide for inspection services during construction. In effect, a design professional without a construction phase inspection obligation has no assurance that the final product will conform to the design approved by the owner. There are architects and engineers who refuse to execute a contract for services which does not include the right to ensure compliance with their plans and specifications by the contractor through periodic or resident inspection. They argue that, unless they can control the final work product, they are at the mercy of owners and contractors who take liberties with the design and often transform it into something completely at variance with the design concept initially conceived and ultimately approved by the owner. However, it should be noted that not all design professionals have the luxury or the economic freedom of choice to insist upon this right and owners often choose not to assume the additional cost of having an architect or engineer on site during the construction phase. On this project, cost-conscious decision making by the owner resulted in numerous changes by the contractor during construction. However, at the outset of the case, there was a definite belief on the part of the architect that he faced exposure because his original plans and specifications did not designate detailed specifications which had, in fact, resulted in failure. The most glaring of these concerns involved an alleged failure to have designated the particular type of Lally column to be used. Although this procedure was ultimately determined to be standard practice within the construction field, the architect did leave himself open to criticism by failing to make a designation of this specific type of column in his plans. Many architects and engineers will conclude from this reading that detail of this kind cannot be incorporated into every project on a cost-effective basis. Perhaps this is so. However, it should be noted that when a claim arises, every aspect of the design process can be subject to question, and if a particular practice is deemed not to conform with the custom and standard of the industry as practiced in the locale in question, a successful claim for damages may be maintained, notwithstanding the fact that the architect or engineer may customarily do the same thing on numerous other projects.
COMMENTS It is common practice in residential work for the architect to do the structural design as well. The laws of some states permit this. Indeed, the definition of architect and engineer as set forth in the licensing laws may be substantially identical. A second practice brought out by this case is a tendency by a builder to ignore the architect or engineer once construction has started and to take care of problems by himself, generally opting for the minimum-cost solution. Few sets of plans are perfect. Wise contractors (and owners) recognize that it is in their own Interest to keep the designer involved because it is the designer's best interest to keep the "job" out of trouble. A contractor may be an engineer by training, or employ capable engineers who well understand the design. Others show what, at times, seems to the designer to be a gross lack of understanding of what makes the structure function. Nevertheless, as the one primarily responsible for the design, a nondelegable duty evidenced by the seal on the plans, a design professional would be ill-advised to permit changes to his or her plans without a complete review and understanding of the change requested and its potential effect on the total design.
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