Posted in Edu

Sharing Knowledge – PROFFESIONAL NEGLIGENCE

ASSALAMUALAIKUM readers,

…..

This purpose of this entry is to share on the negligence cases which I promised earlier; I prepared three cases of negligence for you to read. Hope you find it is useful, not boring and if any misunderstanding on the terms or etc. Do not hesitate to get back to me yah!

Firstly, let me explain the definition of negligence to everyone. Negligence is one of the types in engineering tort. There are various torts in engineering or construction however; this one is among the popular issue in engineering. Simply, negligence is careless.

Next question>> How to define the degree of careless? Simple! Negligence means a standard of duty of care owed by a person to the others i.e; a duty of care of owed by a teacher towards their students to protect them from harm or injuries under their supervision or care. Thus, whenever a teacher being careless towards their students which resulting injuries under their care, the teacher is subject to breach of duty. The bolted sentences are the keywords of negligence establishment however, to prove one is negligence a few conditions must be taken into considerations.

i.                    Negligence – Duty of Care

Damage is foreseeable

Proximity of both parties (popular term – neighbour; it is nothing to do your neighbour)

Situation – Fair, Reasonable to impose duty of care

ii.                  Negligence – Breach of Duty

Degree of risk

Precautions taken to avoid damages

Seriousness of harm

Social impact

(The assessments to measure the degree of breach and distinguish the events/accidents occur before taken as negligence)

# Reasonable Man Test

# Risk Test

# Bolam Test

# General and Approved Test and etc.

 Hope that brief explanations help to visual what is negligence all about…….

 

Okay, Here we go..(don’t sleep!)

  Case 1  (DOT vs Dupree)

“A pedestrian was killed as she attempted to cross a busy highway at an intersection. The design of the intersection failed to meet certain design standards involving the line of sight at the intersection. The accident occurred early on an overcast November evening, and the pedestrian was wearing dark clothing. The driver of the car never saw the pedestrian until striking her. The plaintiff’s demonstrated through evidence that the DOT committed design and engineering malpractice by not installing traffic control devices at the intersection and by having too wide an intersection for pedestrian crossing within the sight distance, and in allowing uninterrupted vehicle approach speeds of 45 mph. Numerous accidents had occurred at the intersection after a widening project.”

Explanation :  Initially, a few arguments  arise  such  as  the  pedestrian  wearing dark clothing, road was open for public  after completion,  under-design  intersection and contractors whom did the construction probably contribute to the incident. Say, if the pedestrian did not wear dark clothing was it possible for them to collide, why such design was approved for construction by authority if it is under-design, by right the authority should check the proposed design before approving or operating, so, why the blame did not liable to the authority since they approved it or was it necessary to blame the contractor for inappropriate construction works if the engineer’s design was accurate and safe.  These possibilities have created doubts in judgements. Therefore, an engineer named Hill, whom is a design expertise in Highway and Transportation represented plaintiff to produce technical evidence by restudy the intersection. Hill discovered that an element in highway design was neglected by defendant with several collisions observed after operation and followed by death.  Thus, Hill has proved that DOT under-design the intersection for operation and safety. This case is regarding professional negligence – engineering malpractice by defendant (DOT). The standard of care produce in this case is related to designing stage. DOT need to design a safe intersection for road users which must be in accordance to the Standard Requirement in Highway Design. Besides that, DOT must carry out a proper Traffic Assessment Impact (TIA) before proceed with designing. The purpose of TIA is to ensure the changes of traffic will minimize congestion, interruptions or accident in the future. Shortly, traffic must run smooth, acceptable and safe. DOT must take care of public safety when using the intersection (numerous duty of care).  However, DOT has failed to exercise the followings standard of care (breach of design) and resulting several collisions and death at the particular intersection (damages). DOT is liable to negligence because of the  foreseeable  causes of acts are justified and supported by a professional highway engineer whom restudy the failure of intersection after widening took place. In addition to the damages, DOT failed to proof that precaution steps were taken to overcome the situations and it develop greater risk for public.

Case 2  (Corinne Thompson, vs. Christie Gordon Et Al.)

 “Thereafter, on November 27, 1998, Trevor Thompson was driving west bound on Route 132/Grand Avenue, with plaintiff and Amber Thompson as passengers. Christie Gordon was driving east bound on Route  132/Grand Avenue when she swerved to avoid another vehicle.  Gordon lost control of her vehicle and hit the median separating the east bound and west bound traffic.  Gordon’s vehicle then vaulted into the air and landed on top of the Thompson’s vehicle, killing Trevor and Amber Thompson, and seriously injuring plaintiff.”

Explanation : Initially, a few arguments arise such as  the responsibilities of providing barriers to the improved ramp falls to the developers, owner, designer, or subcontractors whom engaged to the project. If the  responsibility   falls onto the developer, it is worth  to blame them due to failure to exercise the measures, is there any obligation or c lear terms stated in the contract permits them to do so, did they overlook the hazard exposed to public or purposely did not inform the owner about the consequences. If the responsibilities fall onto the owner probably in terms of contract and duty as owner to exercise social responsibility to public safety  shows the  owner could contribute to the damages too. If the blames subjected to the designer; did he failed to incorporate median barrier into the improved design or the duty of designer is limited to redesign only but not at construction stage. And finally, did the contractor misinterpret the sets of drawing which caused collision and eventually death of two. An early assumption  for root cause of this case  is due to the terms and conditions of the contract itself between parties that may produce ambiguity, confusion  or misinterpretation of terms.  Generally, the project was regarding the improvements of existing clover leaf ramps which technically proved as under-design; means the existing traffic volume were  inadequate to cater the existing traffic volume  therefore, a traffic restudy was conducted by  a  highway engineer to prove the ramp was  insufficient   to  accommodate existing traffic. The final design proposed 2 clover leaf ramp of east bound and west bound of I-94. As in contract, the proposed works are to build 2 clover leaf ramp at I -94 and replacement of bridge deck surface at I-94.  The project was awarded to the developer named CH2M Hill Inc by the owner of Avenue Hill Shopping Mall. The project doubts begin when there  are lots of parties happen to contribute to the damage especially the  developer whom carries  out the overall project from the beginning of the contract until completion. The developer pleads unguilty and  review of contract between developer and owner  was intended and  begins  however,  turn other way around. The  ambiguity  of contract  between owner (WDC) and developer (CH2M Hill Inc)  reached when double terms were  found  used  by plaintiff (WDC)  to identify the proposed work of bridge deck.  The terms were found many as “replacement” while under the Section of Scope mentioned as “roadway improvements” or “interchange improvements.”  Defendant  (CH2M Hill Inc) plead unguilty because of the inconsistent terms were used repetitively in the contract without proper clarification or deep explanation  to the  defendant. In conjunction with that, the contract said to agree the replacement of bridge deck which does not require them to provide median barrier . The plaintiff was disagree because the defendant duty is to exercise the engineering skill and knowledge without compensation and plaintiff assumed defendant will do so. However, in the contract stated that the defendant must redesign and replace not to redesign and construct median barriers though the plaintiff claimed that both terms interrelated with each other. Plaintiff presenting evidence from professional whom did engineering study for that particular ramp. He claimed that defendant was guilty due to the failure to analysis on the cross over  and  protections nevertheless court reject his statement because the defendant duty is circumscribed by the terms of the contract that they entered into with WDC and the scope of work of  defendant  binds with contract undertakings.  After several trials and hearing, court decides to favour defendant and reversing judgement to the plaintiff because defendant owed duty to the plaintiff and circumscribed with undertaking contracts in between them.  So, plaintiff is liable to the injuries and death occurs. Conclusively, the ambiguity of terms inside contract is a serious issue and remains intolerable because nature of a contract must be construed as a whole, viewing each provision in light of the other  provisions  and if the words in the contract are clear and unambiguous, they must  be  given their plain, ordinary and popular meaning.  Thus, if the contract susceptible to various meaning, it is consider as ambiguous or ambiguity. For record, if a contract language is ambiguous, it will be considered as  an  extrinsic evident to determine parties intent.

Case 3  (Hydro Investors, Inc. v Trafalgar Power, Inc.)

 “This case is regarding  a developer purchased land and constructed hydroelectric facilities in reliance on an engineer’s analysis of the financial viability of proposed hydroelectric projects (including an assessment of the energy to be generated by each project as well as the costs of construction), it was entitled to recover its losses for the financially disastrous projects from the design-builder that  employed the engineer and constructed the projects.”

 

This article examines a complex case  where;  a developer purchased land and constructed hydroelectric facilities in reliance on an engineer’s analysis of the financial ability of proposed hydroelectric projects  which include the energy  assessment  and cost projection that will be generated from the project. The issues arise such; plaintiff provided the capital for hydroelectric plant construction and defendant supposed to carry out the construction as in contract however, plaintiff was entitled to recover its losses for the financially disastrous projects from the design -builder that employed the engineer and constructed the projects. The question was, does it sustainable enough to prove the malpractice of engineering by defendant.  Defendant was confident of their design and proved that energy assessment of energy flow and heat at Forespot and Ogdensburg will generate more energy however with exemptions that the plant will produce less energy output due to the surrounding terrains  and low head of river.  However, the statement from defendant was specious and plaintiff was unknown to the constraints of the project. If plaintiff was known to the realities of Odensburg and Forestport, this will allow plaintiff to decide whether to invest or not  into the project. By right, plaintiff whom as a client should get the real picture of this project provided with reliable technical information. Say,  defendant  provided all  info  intended by plaintiff; plaintiff will able to rethink or even invest more onto the project to overcome the constraints faced. The  implication of defendant act had  caused substantial economic loss to the plaintiff which is due to the engineering malpractice. So, is there any probability for the plaintiff to claim for economic loss instead of malpractice loss or both or in negligent of misinterpretation? The  answer is, economic loss claim is  inapplicable  to  the case, the economic loss rule would not be applied to bar the damages. It held, “While we recognize that some cases have applied the economic loss rule to bar recovery where the only loss claimed is economic in nature,  and still others have applied that rule to professional malpractice cases, the better course is to recognize that the rule allows such recovery in the limited class of cases involving liability for the violation of a professional duty. To hold otherwise would in effect bar recovery in many types of malpractice cases.”  As well as, to claim for both. No such thing. While, for negligent of interpretation is inapplicable too because the evidence shown that the plant produce energy which is the main subject of constructing the hydroelectric plant. However, this case is valid for  professional  malpractice due to convinced situation that  defendant  did not  met the  minimal standard of rofessional care  and  proximate cause of  plaintiff injury could easily be construed to be the carelessness, and through the doctrine of respondent superior, his employer, Stetson-Harza. Conclusively, the defendant is liable to the losses of malpractice engineering. Caution should be exercised in permitting one individual to serve more than one entity. The question of alleged conflict of interest was apparently raised to the jury in this case and, according to  plaintiff, caused prejudice and harm to  their position. It is also interesting to note that despite the lack of performance guarantees, and the fact that the court did not allow the cause of action for negligent misrepresentation to go forward.

…………………….

Summarily, the first and third case described about breach in design or malpractice of engineering, where an engineer should not do (a duty an engineer carry) while the second case described ambiguity in contract, this case was special because at initial stage, the negligence was prove to the developer however, once the contract document is revealed, court found a double terms used to describe the scope of work. Lastly, the liability goes to the client. By right, they should imposed vicarious liability to the client. However, since the law amended by human even debated and proposed by human too, i believed that different people will have different opinion onto these cases as well. Personally, whatever the court decides is a respect for us to accept but bear inside our mind that no one is perfect. Judges might be mistaken too. Peace. =)

Regards,

Nur.

Author:

I am a Muslim that holds on to the Islamic principles. I believe the old skool methods ; commitment>hardworking>success (even though I seldom used the shortcut method). I am not gifted but i work hard to achieve my goals. Although i failed once or twice, I am not the easy-to-give-up type. My MENTOR is my mother. My STRENGTH is my family. I can listen and talk, express and motivates my friends the most i guess. Don't love me of something i am not.

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