The Potentially Catastrophic Design Error And the Ethical Response

1. The Potentially Catastrophic Design Error And the Ethical Response Mark J. Heley Heley Duncan & Melander, PLLP

2. Possible Life Safety Issue -Hypothetical • An engineer has designed a unique and innovative roof for a building that has been constructed. • The engineer decided to use an intricate design with pitches and slopes such that there would be tiered roofs. • Unfortunately, the engineer realized only after the fact that he did not consider certain snow and wind load points on the interlocking roofs, and therefore, his analysis of the loads was, in the engineer’s opinion, incomplete. • The snow and wind loading on this roof structure is very unique due to the tiered design, but could fail under certain conditions.

3. What should the Design Professional Do?

5. Design Professional Response • May depend on nature of Problem • Life Safety – Imminent Threat of Bodily Harm or Property Damage • Impact to Service Life • Review Conditions and Design to Confirm Problem Exists; • Internal Review • Peer Review • If Problem Exists, Determine Whether There is a Recommended Solution • Call Attorney or Trusted Advisor • Call your Professional Liability Insurer • What is required – Ethically and Legally

6. Ethical Requirements for Design Professionals • Duty to Warn • ASCE – Canon 1 • Hold Paramount the Safety, Health and Welfare of the Public • Requires Engineer be “Untiringly Vigilant” in Protecting interests of Public • Requires Engineer to Address any Threat to Public Perceived in Services. • NSPE – Canon 1 • Hold Paramount the Life, Safety and Welfare of the Public • ACEC – Canon 1 • Hold Safety Paramount • Safety is Primary Obligation • May Require Notification of Clients, Employeers & Building Code Officials

7. Ethical Requirements for Design Professionals • AIA – Less Direct • Canon 1 • Members should Promote and Serve the Public Interest • Canon 2 • Upon Discovery of Condition Affecting Public Safety, Architect Should • Advise Employer or Client • Refuse to Consent to Adverse Condition • Report the Condition to the Building Inspector or AHJ

8. Legal Requirements for Design Professionals • Do Ethics Requirements Translate to Legal Requirements • Burg v. Shannon & Wilson, Inc. • Engineering Firm Hired to Investigate Cliffs above Local Residences • Firm Recommends Action Before Rainy Season • Individual Resident Retains Firm to provide Report for Financing • Months later, Storm Occurs, Residents’ Property is Damaged • Homeowners sue Engineer for Failure to Warn • Court finds No Legal Duty on Engineering Firm

9. Legal Requirements for Design Professionals • Cases: E. Steel Constructors, Inc. v. City of Salem, 209 W. Va. 392, 401 (2001); Pointe at Westport Harbor Homeowners' Ass'n v. Engineers Nw., Inc., P.S., 193 Wash. App. 695, 703 (2016). • A design professional’s duties may extend to several stakeholders, even without contractual privity, where safety is at risk. Such stakeholders may include contractors that rely upon the design, the public, developers, and people that have legal interest in property. • So – may not Need Regulations to Establish Duty

10. Design Professional /Owner - Hypothetical • The Design Professional (Engineer) did some more homework and is becoming increasingly confident that, in a rare situation, the design is insufficient and susceptible to snow and wind loads. • But, due to the unique and innovative design, the engineer is still unsure. • The engineer is having sleepless nights. • The engineer called the carrier and, following the advice of his attorney, decided to have a meeting with the owner. • Engineer wants to tell Residents and Building Official

11. Arch/Engineer Wants to Tell Building Official Then City Inspector Then letter to Residents - Owners

12. Owner NO WAY- Tells Engineer to Verify Problem Say Nothing Even if Problem is Real

13. Owner Wait for Peer Review Let me Check Let’s Take Care of It

14. Ethical Standards for Design Professionals-Confidentiality • Ethics Standards – Confidentiality • NSPE Canon III (4) • Engineers shall not disclose without consent, confidential Information concerning the business affairs or technical process of any present or former client or employer, or public body on which they serve. • AIA Canon 3.4 • Architect shall not reveal information requested to keep in Confidence or that adversely impacts client except as required by law or allowed by the Code of Ethics

15. Design Professional Wants to Protect Public -

16. Owner Say Nothing Do Nothing Let’s Fix This – but Keep Quiet

17. QUESTION What should be the attorney’s advice? What Should the Design Professional Do?

18. ANSWER • It Depends – More Likely Disclose if • Life Safety • Clear Danger • High Risk • Imminent Threat • Less Need to Disclose Immediately if • Service life issue – no threat of Harm • No clear Threat • Low Risk • Debatable issue

19. This Situation – Owner on Board for Repairs • CitiCorp Center – 54th and Lexington in Manhattan • Design Professional Verified Problem Existed • Under Certain Quartering Winds, Building Could Collapse • Did LeMessiure’s Response meet Ethical Requirements • Subject to Debate

20. This Situation – Owner Not on Board for Repairs • NSPE Board of Ethical Review Case No. 13-11, • Audibility Test of Alarms inside Condominium Project confirms Problems • Fire Alarms – not loud enough • Engineer advises Owner of Code Violation • Owner advises Financing Falls Through – No Money for Financing Repair • BER advises if risk is “Imminent” notice should be given to Owner • If Owner does not address issues ,then notice should be given to building enforcement officials. • Notify Tenants?

21. SUMMARY • Duty to Protect Public Safety and Welfare is Primary • Confidentiality is Consideration • When Considering Action, must Balance Several Factors

22. Considerations • Nature of Harm • Threat to Life Safety • Property Damage • Impact to Service Life or Maintenance

23. Considerations • Suitability of Initial Design • Clear Error • Matter of Engineering Judgment • Change in Standard of Care • Change in Code

24. Considerations • Likelihood of Occurrence • Imminent • Inevitable • Progressive • Unlikely • Remote

25. Considerations • Consequences of Error • Liability • Client Relationship • Impact to Company

26. Related Considerations • Damage to Adjacent Property • Discovery of Unrelated Problems • Attorney’s Obligation of Disclosure • Client Consent • Without Client’s Consent

27. Design Professional Hypothetical • We’re changing the facts again. • The design professional determined that the roof diverts water to adjacent property and will likely cause flooding in 25 year rain event. • Damage to Adjacent Property Likely • AIA Decision 2006-21

28. Design Professional Hypothetical • We’re changing the facts again. • The Peer Review / Forensic consultant discovers problems unrelated to the primary issue. • Owner/Lawyer advise Peer Reviewer to Omit discovered problems from Report • NSPE Addresses Issue of Discovery of Unrelated Problems • NSPE Case 89-7

29. Peer Reviewer Discovers Unrelated Problem • Case: Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 595 (Tex. App. 2008): • A city contracted with an architectural firm to review a water garden’s existing conditions and determine whether the water garden complied with the ADA. The architect visually inspected the water garden and submitted a conditions survey to the city, but the city did not retain the firm to design or implement any changes. Subsequently, four people improperly entered the water gardens and died. The Texas Court of Appeals held that the architects owed no duty to the public because the architects’ “duty depends on the contract they entered into with the City, and because there is no evidence that the contract required ... [the architects] to report or make safe any hazards detected.”

30. Design Professional/Attorney Hypothetical • We’re changing the facts again. • The peer reviewer determined that the roof could collapse any day. • The Design Professional disagrees, and thinks that the roof probably will not collapse for another year. • Owner, Engineer and Peer Reviewer agree to say Nothing • Design Professional directs Attorney to say Nothing

31. Owner, Peer Reviewer and Engineer

32. What should the attorney do? • Attorney’s Obligation of Disclosure • Client Consent • Without Client’s Consent

33. Owner

34. Design Professional

35. Attorney

36. Attorney

37. Design Professional /Attorney • Ethics Opinion: California Legal Ethics Opinion 1981-58: • In this case the attorneys were not permitted to disclose to third parties the content of a report from an engineer retained by the lawyers stating that a structure on the property owned by the client did not comply with the Uniform Building Code and may not survive an earthquake. The Committee did not consider that the lawyers were ‘satisfied beyond a substantial doubt’ that there was an immediate, substantial risk to the public unless the disclosure was made.

38. Design Professional /Attorney • American Bar Association Model Rules 1.6 • Lawyer may reveal information relating to representation of a client to the extent the lawyer reasonably believes necessary to prevent • Certain Death • Substantial Bodily Harm

39. The Potentially Catastrophic Design Error And the Ethical Response Mark J. Heley Heley Duncan & Melander, PLLP