CVE 4070

							CVE 4070


  Construction Engineering
  Law for Engineers
  Prof. Ralph V. Locurcio, PE
Law for Engineers…
   Government vs.. Private contracts
   Types of Contracts in Construction
   Resolution of disputes
   Legal vs. Engineering training
   Introduction to Law & Contract Law
   Most common problems
Intro to Contract Law
   What is a contract
   Offer and acceptance
   Mutual assent
   Authority & capacity to issue
   Key elements of a contract
   Format & standard clauses
   Standards of care
   Are construction contracts different
 Contracts used in Construction
 What are pitfalls of each…or where do
  claims & disputes arise…
     Fixed price – slow - hard bid, all info known
     Unit price – faster - prices known, quantities unkown
     Cost +Fixed Fee – fastest - scope, time & prices not fixed
     Cost plus Incentive Fee – same with incentive

   Design-Build w/ Max Price – all risk to contractor
Govt vs. Private Contracts
   Open to all taxpayers
   Level of detail greater
   Equal opportunity & social content
   Recordkeeping important
   Use of commercial specs & products
Resolution of disputes
   Negotiations
   ADR & informal resolution
   DRB, dispute resolution clauses
   Arbitration
   Litigation
Lawyers vs.. engineers
 Legal training vs.. engineering
     Subjects studied & method
     Rules of evidence
     Use of facts vs.. judgments
     Professional values… what’s important
 What is project success to a lawyer
 What’s wrong with engineers
   What causes most claims or lawsuits
Law School Curriculum: 1st year
1. Civil Procedure (4 sem. hrs.)
2. Constitutional Law (4 sem. hrs.)
3. Contracts (4 sem. hrs.)
4. Criminal Law (3 sem. hrs.)
5. Lawyering Skills I, II, III, and IV (2 sem. hrs.each)
6. Property (4 sem. hrs.)
7. Professional Responsibility (2 sem. hrs.)
8. Torts (4 sem. hrs.)
Total: 33 sem. hrs
Law School Curriculum: 2 & 3 yrs
Upper-Level Elective Courses
Select one of the following areas of concentration to see a
    listing of the courses offered in each category:
1. Administrative Law and Government Regulation
2. Commercial Law
3. Constitutional Law/Civil Rights
4. Corporate Law
5. Criminal Law
6. Environmental Law and Real Property
7. Family Law and Estates
8. Intellectual Property
9. International and Comparative Law
10. Legal Theory, History and Interdisciplinary Studies
11. Taxation
12. Trial and Appellate Practice
Legal logic vs. Engineering logic
   One solution vs. many possibilities
   Assumptions vs. hard facts
   Science vs. art
   Correct vs. acceptable
   Finite answer vs. vague solution
   professional duty vs. social context
   Result vs. process
Basics of Law
    Private vs.. Public law
    Torts & Contracts
    Consent
    Privilege
    Immunity
    Standard of Care & Negligence
    Strict & Corporate Liability
    Causation
    Civil Litigation
Private vs.. Public Law
 Private Law
     Rights & duties of private citizens to each other
     Contract Law
     Tort Law
     Family Law
     Property Law

 Public Law
   Rights & duties of private citizens to the government
The Law of Contracts-1
 Deal between two parties
     Agreement between two individuals
     Meeting of the minds
     Voluntary
     Compensation
     Formalities: e.g. signing or handshake
     May not be contrary to Public Policy
     Freedom of Contract
       Voluntary nature
       Ethical to bargain for own interests
       Basis of “free markets”
The Law of Contracts-2
 Enforceable by law
     Breach or Default
     Default or Breach causes damages
     Damages
     Relief
     No punitive damages
     Violation not considered “morally” wrong
Law of Torts-1
 Law of Duties
     People have interests
     Others obligated to respect
     Social obligation - not an “agreement”
     Much more diverse & changing than contract law
     Governed by “case law”
 Remedies
   Violation causes “damage” to one party
   Remedies judged to compensate for damages
Law of Torts-2
 Types of torts
     Assault & battery
     Wrongful death
     False imprisonment
     Libel, slander & defamation
     Trespass
     Nuisance
 Newer torts
   Privacy
   Emotional distress
   Product liability
Law of Torts-3
Duty of Fiduciary Responsibility
     Duty to protect the interest of another
     May not act in “self-interest”
     Examples: doctors, lawyers, engineers
     Responsibility is not “negotiable”
     Violation considered “morally” wrong
Law of Torts-4
 Exceptions
   Consent – express or implied, but “informed”
        Doctor discusses medical procedures
        Financial advisor discusses risk
   Privilege
        Intrusions acceptable in pursuit of higher social goals
        Fireman or social worker may invade privacy
        Must be carefully applied
   Immunity
        Family, charitable & sovereign immunity
        Torts law waived
Law of Torts-5
 Standard of Care
   Defines the “limits” of the duty relationship
        Doctor exercises “due care”
        Engineer uses “appropriate” safety precautions
   Concept of the Reasonable Man/Person
        How would a “reasonable” person act in the same
         circumstances
        Failure = negligence implies “fault”
        Negligence most common form of tort liability
   Fault is basis for tort liability
Liability for Torts
 Liability requires negligence or intent
   Corporate liability relates to policies
     UPS does not have “safe driving” policy
     Engineering without “standards”
   Personal liability to individual actions
     UPS truck driver causes accident
   Strict liability does not require intent or
    negligence
   Causation & proximate cause
Read Ed Kinberg’s 4 articles…
   Legal aspects of contracting
   Construction law notes
   Avoiding litigation by risk management
   Avoiding disputes with your builder
Causes for Claims & Lawsuits
 Lack of common understanding
     Expectations: general vs. specific
     Standards to be followed; specifications
     Outcomes and quality
   Clear roles of parties
   Mistake in bid
   Basis for payment – hourly vs. lump sum
   Basis for changes – agreement on scope, cost & time
   Lack of documentation
   Dispute resolution process; failure to act promptly
   Read & understand the contract
   Failure to manage risk
Most common problems
   Negligence
   Breach of contract
   Verbal changes
   Constructive changes
   Unclear scope of work
   Inaccurate contract documents
   Differing site conditions
   Shop drawings & submittals
Ed Kinberg’s Top 10 List
Today’s topic is…
“The top 10 ways that engineers foul up construction
contracts resulting in claims, disputes and more
money for lawyers like Ed Kinberg…”
Kinberg’s Top 10 List
#10 – Engineers forget to put dates on their
  contract drawings & documents which fails to
  establish a point of reference for contract
  performance.

#9 – Engineers are overly precise; they worry
  about the small details and often miss the big
  picture.
Kinberg’s Top 10 List
#8 – Engineers overlook flaws in procedure that later
  can become legally binding.

#7 – They fail to settle both time & money issues on
  change orders resulting in later claims.
Kinberg’s Top 10 List
#6 – Engineers neglect to document what they
  observe & hear on the job site; resulting in
  poor memory when claims are adjudicated.

#5 – Engineers stand on principle and forget that
  the judge & jury will do what sounds right to
  them… based on the evidence as presented.
Kinberg’s Top 10 List
#4 – Engineers forget that the engineer of record
  can be held “personally” liable for negligent work.

#3 – Engineers also forget that they can be sued for
  up to 15 years for a “latent defect” that no one
  knew was present.
Kinberg’s Top 10 List
#2 – Engineers are not very good communicators;
  so they fail to establish good solid working
  relationships, based on frequent
  communications, with their contractors.
Kinberg’s Top 10 List
And the #1 reason that engineers foul up
construction contracts resulting in more money for
lawyers is…

#1 - They fail to read the most important part of
the contract documents… which is…
                   the scope of work!!!!
Happy Thanxgiving!!