A Balanced Expert Report
By: Ronald J. Cohen, P.E.
The study of civil engineering includes surveying. In surveying, you are taught the mathematical process of closing a loop and ending a survey at the starting point. If the loop closes the survey can be considered accurate. This is also reasonable practice for forensic investigations. Therefore, to be reasonably complete, a forensic investigation warrants defining whether a hazard was present and whether protection from the hazard was practicable; the provided technical discussion should support the expert’s position. However, in certain instances, the expert’s scope of investigation may be focused on specific issues. Consider whether this will weaken the position of a plaintiff or defendant.
In court or deposition, attorneys often direct questions relating to a building code and ask an expert about what is not included in that code. This is an approach that distracts the jury and perhaps a judge. From an engineering perspective, the facts and engineering standards or practices often define what is reasonable for safety in an area where a code was silent. Where a code did not address a specific topic or location, simply asserting the code was not violated will likely be misleading and will at the least be an incomplete opinion. So, here are some points to consider when reading the International Code Council (ICC) – International Building Code (IBC) and the International Property Maintenance Code (IPMC).
The concept of a building code began around 1758 B.C. when King Hammurabi in Babylon addressed construction quality and wrote in stone, “If a builder has built a house for a man and his work is not strong, and if the house he has built falls in and kills the householder, that builder shall be slain.” In more recent history the Building Officials and Code Administrators (BOCA) was formed in 1915, the International Council of Building Officials – Uniform Building Code was produced in 1927 and the Southern Building Code Congress International – Standard Building Code was issued in 1945. Today these organizations are collectively represented under the umbrella of the ICC.
The series of ICC codes has 15 volumes of international codes that are used in over 100 countries. A particular emphasis of the ICC – IBC relates to fire safety. A history of significant fires with the tragic loss of lives set the development for the requirements for means of egress in motion. In addition, the modern codes include requirements for construction and exterior roof and wall assemblies. However, with the exception of the means of egress path to the public way, the IBC is significantly limited beyond the building envelope.
An example is an exterior grading change in elevation perhaps 30 feet clear from a structure, which is not a means of egress element. This is simply beyond the limits of the IBC. However, not being addressed by the IBC does not mean that a particular condition of the property is code compliant. So instead of investigating code compliance, the research should focus upon local ordinances, engineering standards, and customary practices.
Another example relates to property maintenance. The IPMC discusses maintaining a property to be safe and free from hazards. However, all specific hazards and safety tolerances are not necessarily addressed in the IPMC. Therefore, a specific condition of the property has to first be technically documented in order to be considered a hazard that was not maintained within recognized safety tolerances. Also, it should be evaluated to determine whether the subject condition is grandfathered construction that is permitted to remain in use without required alteration. Furthermore, it is important to establish that there is a reasonable means to eliminate the opined hazard.
Whether you are representing a plaintiff, or a defendant, be certain your expert has reasonably evaluated what is or is not a code issue and whether or not a hazard was present. Safety tolerances and the methods for eliminating an opined hazard should be addressed. Remember, the built environment has imperfections. An imperfection does not define the presence of a hazard. There are tolerances for construction and tolerances for maintenance of the built environment that relate to safety. Consequently, a balanced perspective by your expert will establish a position of strength, rather than a list of weaknesses. A forensic engineering report that has not closed the loop will be open for attack and may thereby affect the outcome of your case. Be sure to choose an expert with the appropriate knowledge and review their report for these key items: code issues, identification a hazard, safety tolerances, and the elimination of the hazard.