Forensic Engineering: Environmental Case Histories for Civil Engineers and Geologists

By James E. Slosson and Gerard Shuirman

This book explores these and many other related subjects. This book will be of great value to expert witnesses in liability suits resulting from flood, erosion, landslide, mudslide, or other types of natural hazard-related damage. It clearly explains the needs of an expert, the relationship of the expert to the client and the attorney, the challenges to face, and the proper orientation as an expert. Through a variety of case studies, the book illustrates investigative techniques, case and data presentation to prove "reasonableness" or "unreasonableness" of conduct and "causation."

• Adequacy of emergency procedures for evacuation and street closures in an area designed for and designated as a retention basin
• Necessity of the purchase or condemnation of flood-threatened properties due to partial blockage of a canyon by a previous landslide
• Widsom of providing qualified and objective engineering and geologic input to the land use planning in environmentally hazardous areas

• Language: English
• Publisher: Academic Press
• Release date: Jun 28, 2014
• ISBN: 9780080571225

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FORENSIC INVESTIGATIONS: A GROWTH INDUSTRY

Publisher Summary

This chapter provides an overview of the growth of the forensic investigations. There has been a veritable explosion of forensic work encompassing many professional fields since 1970s. It started with medicine and has spread to other professions and disciplines, in particular to the earth and environmentally related sciences. All branches of engineering, including civil and geotechnical, have become highly involved in forensic investigations. The American Society of Civil Engineers has even established a special section for forensic specialists. Many civil engineers and geologists spend most of their professional time doing forensic work; some devote all of their time to it. The word forensic implies the scientific investigation of accidents and environmentally related failures and disasters to discover their causes. These investigations can be made for many reasons and their findings and conclusions can be used in myriad ways. A forensic investigation need not necessarily be performed for legal purposes or result in litigation. However, most are done for legal reasons, with lawsuits usually filed in advance of any serious forensic work. The demand for forensic experts in civil engineering and geology has been skyrocketing for several reasons. The reasons are varied, complex, and, in many cases, interrelated.

INTRODUCTION

In the 1970s most of us associated the word forensic with Jack Klugman’s role as a medical examiner in the television show Quincy—that is, one who examines and dissects corpses for evidence of medical malfeasance or foul play.

Since that time there has been a veritable explosion of forensic work encompassing many professional fields. What started with medicine has spread to other professions and disciplines, in particular to the earth and environmentally related sciences. All branches of engineering, including civil and geotechnical, have become highly involved in forensic investigations. The American Society of Civil Engineers has even established a special section for forensic specialists. Many civil engineers and geologists spend most of their professional time doing forensic work; some devote all of their time to it.

What exactly does the word forensic mean, and how does it apply to civil engineering and geology? Definitions abound, but basically, for this book, it implies the scientific investigation of accidents and environmentally related failures and disasters in order to discover their causes. These investigations can be made for many reasons, and their findings and conclusions can be used in myriad ways. A forensic investigation need not necessarily be performed for legal purposes nor result in litigation. However, most are done for legal reasons, with lawsuits usually filed in advance of any serious forensic work.

Why has the demand for forensic experts in civil engineering and geology been skyrocketing? The reasons are varied, complex, and, in many cases, interrelated. They should be carefully examined, if for no other purpose than to find ways to stem the growth. Some of the reasons are discussed here.

An Overabundance of Attorneys?

A pervasive feeling in our society is that there are too many trial lawyers chasing too few legitimate lawsuits, thereby encouraging prospective plaintiffs to sue before ever examining the merits of the litigation. With contingency legal fees the would-be plaintiff has little to lose in initiating a lawsuit. The attorney has much to lose but may accept the case in spite of a lack of experience or knowledge in a particular field. However, more often the attorney will decide to gamble on a questionable or creative-type case simply because the potential rewards (generally 30–40% of the settlement or verdict), coupled with the perception of an inept defense attorney, make it worthwhile. Despite the profusion of frivolous cases, in our opinion overzealous attorneys are not the primary reason for the accelerating growth of lawsuits requiring forensic services from civil engineers and geologists.

Decline of Immunity

A significant growth factor has been the gradual stripping away of immunity from the public agencies who design, operate, and maintain our vast system of public works. Recent legislation and court decisions have combined to expose public agencies to a degree of liability unheard of as recently as 20 years ago. Consider these items:

• Under the concept of joint and several liability (commonly referred to as deep pockets), it is common for a public agency to have to pay most or all of a decree, even though it may have been judged to be responsible for as little as 1%. This occurs because the other defendants who were judged primarily responsible, such as contractors, engineers, geologists, and developers, may have little money or be grossly underinsured. Some states have recently legislated to some degree against the deep pockets concept, but it is still generally prevalent. Even in states where it has been rescinded or modified, the fact that lawsuits can take as long as 5 yr to come to trial means that several more years will go by before the new laws begin to take effect. For obvious reasons trial lawyers who represent plaintiffs are adamantly opposed to modifying deep pockets. In fact, in California, where most of the state legislators are attorneys, it took a statewide public petition initiative to put such a measure on the ballot, which was then approved by a two-thirds majority vote. Plaintiff trial lawyers argue that their clients will, in many cases, not be able to collect the total true and fair amount of damages if each defendant need not pay more than its proportionate share. This may be true in certain instances. On the other hand, why should a defendant, such as a public agency, be forced to pay more than its proportionate share simply because it has more money or insurance?

• Most plans and specifications for public works and grading improvements, particularly those connected with land development, are prepared by private engineers and geologists hired by developers. The public agency then reviews the plans together with the geologic and geotechnical reports before issuing a permit for the project. In the past when any of the components of a project failed, liability was borne squarely by the private design professionals and the contractors. Recently there has been an increasing tendency by the courts to hold the public agency at least equally responsible because it approved the documents and issued the permit. As a result public agencies have been fair game for plaintiffs’ attorneys. An example of how far public agency responsibility can be extended will be illustrated by one of the case histories on landslides in Chapter 3. Suffice it to say here that a public agency can be held responsible for approving development of a hillside residential subdivision on which a landslide later occurs, even though all the developer’s geologists and geotechnical consultants (firms of high professional standing) reported the site to be safe.

Government Mismanagement

Part of the blame for the proliferation of environmentally related lawsuits rests with government itself, from the politicians and administrators to the technical staffs. Unfortunately most government agencies, at all levels, have not fully grasped that they are more vulnerable to liability than they used to be. Some of government’s major shortcomings that contribute to or invite lawsuits include:

• Lack of close and competent legal advice in the early stages of planning and design of major projects. Such counsel is essential to seeking out and ameliorating any features of the plans that exhibit inherently high legal risk. The increasingly successful use by plaintiffs of the concept of inverse condemnation (the claim that damage to private property occurred substantially as the result of a government project or action) makes it mandatory to include the study of potential inverse actions as part of the early planning process.

Example A government agency designed and built a major highway through a hillside area. Where canyons were filled to provide the appropriate gradient and alignment, the agency neglected to design and install subdrains to accommodate the flow of underground water. Concurrently, a large condominium development was built adjacent to and on the uphill side of the highway. The units were completed, sold, and inhabited for several years. Then ground subsidence began to occur within the development, causing major cracking and displacement of walls, slabs, foundations, etc. The homeowners’ association employed geotechnical, civil, and geologic consultants to investigate the causes of the settlement and to recommend remedial measures. Many processes contributed to the observed damage, but one cause was the rise of the underground water table due to blockage of the original canyons. If the cause-and-effect relationship can be proven in court, the agency would be liable under inverse condemnation.

This example clearly involves negligence on the part of the agency in overlooking the need for subdrains. However, negligence need not be present to invoke inverse condemnation; it only has to be shown that the damage would not have occurred to the same extent if the agency’s project or improvement had not existed. In addition, it is legally irrelevant to argue that the improvements resulted in greater benefits than damages. The only way the agency could protect itself would be to prove that the damage that would have resulted before the project would have been equal to or greater than the actual damage.

Example A government agency approved a large single-family hillside subdivision that included a debris basin at the mouth of a major mountain canyon and a large storm drain from the outlet of the basin to an existing flood control channel. All public improvements, including streets, storm drains, and debris basin facilities, were dedicated to the government agency for operation and maintenance. (Dedication, in this context, means that the appropriate government agency accepted the improvement for ownership and maintenance.) The subdivision included a street with a straight alignment on a 15% gradient, which is the maximum allowable. The street began just below the debris basin and terminated in a T intersection about 1000 ft (305 m) downhill. Opposite the intersection and directly aligned with the end of the steeply inclined street was an expensive two-story house that was not part of the subdivision. A fire in the watershed, followed in the same year by a flood flow with a 25-yr return frequency, caused the basin to become filled with debris. The storm drain became almost completely blocked by a large rock that lodged in its entrance. In this dangerous situation a huge boulder was carried out of the basin by flow diverted over the blocked drain. Having nowhere else to go, the massive rock bounded down the middle of the street, taking dead aim at the house. The ensuing demolition was devastating. Only the foundations were left intact, as the boulder barely slowed down on its course to its final resting point in another debris basin immediately downstream from the house. It was extremely fortunate that no one was home at the time. That the agency owned, operated, and maintained the debris basin, storm drains, and streets established another clear-cut inverse condemnation claim on the part of the homeowners. Studies showed conclusively that, if the subdivision and debris basin/storm drain had not been built, the natural canyon watercourse would have carried the flow, including the boulder, past the house without damage.

• Not learning from a bad experience. In the previous example the government agency, having settled out of court with the plaintiff whose house was demolished by the boulder, chose not to buy or condemn the property and make it part of the lower debris basin. Instead it opted to grant a building permit to the owner to reconstruct the house. All this even though there was no economically feasible solution for averting an identical disaster. Unfortunately the annals of environmental disasters are filled with repeat performances.

• Taking over facilities for operation and maintenance built by other jurisdictions or private parties that do not meet the standards and specifications of the government agency.

Example A mountain road was privately built to serve a residential development. Several years later a government agency accepted dedication of the road and it became public. At a particular location the roadway had been excavated into a hillside, creating a cut slope that was too steep in terms of the prevailing geologic conditions. No slope failure problems were encountered for many years. In the meantime houses with sewage septic systems were being built upslope. After several years of unusually high rainfall infiltration, combined with sewage effluent from the septic systems, an ancient landslide was activated. The cut slope above the road failed. Certain homeowners sued the agency, alleging, among other things, that the road failure triggered the entire slide and that the slide would not have occurred, or have been as damaging, if the road slope had been up to standard. Regardless of the validity of the allegation, the agency was faced with a costly and time-consuming defense.

In all fairness it should be said that many government agencies have learned this lesson the hard way and no longer accept substandard improvements until they are properly upgraded. However, there are so many existing substandard dedications that it will be many years before they cease to become targets for lawsuits. In most jurisdictions the present cost of upgrading is prohibitive except when conditions of vulnerability are obvious and extreme.

• Failure to strengthen outdated codes, standards, design criteria, and written policies related to design, construction, and maintenance, which, when updated, must be rigidly enforced.

Slosson’s law, a corollary to Murphy’s law, states that the quality of professional work will sink to the lowest level that government will accept. Engineers and geologists are therefore often faced with the task of convincing a developer client that quality should be higher than minimum code requirements, or what one can get away with.

Rather than cite examples of such shortcomings it seems appropriate to laud a government entity that has served as a model for how to do things right. The City of Los Angeles encompasses over 1000 mi² (2600 km²), much of it located in environmentally high risk areas. While experiencing unrivaled growth pressures, it has managed to minimize failures due to ground movement and flooding and subsequent lawsuits. The praise should not be construed as approval of all the development that has taken place but rather as acknowledgment that almost all recent development within geologically sensitive and flood-prone areas has been properly engineered, reviewed, constructed, and inspected. This happened because the city revised its old code and adopted and enforced a tough new grading ordinance in 1963. Exceptions were not granted without approval of comprehensive geotechnical and geologic reports. Impartial review boards, composed of eminent practicing engineers and geologists, were established to consider requests for code variances.

The role of political pressure in forcing approval of developments in high-risk areas was drastically reduced. Field inspections and code enforcement have been remarkably consistent, considering that in many jurisdictions these important phases are lax at best and bribery riddled at worst. As the result of these policies the City of Los Angeles has experienced a dramatic 97% decrease in failures due to land movement since 1963. This figure is even more remarkable considering that many of the post-1963 failures were on properties where design and construction had occurred prior to 1963. Two other shortcomings that contribute to or invite lawsuits are:

• Lack of high-quality professional and legal input relative to maintenance and operational programs and procedures.

Example A debris basin was privately designed and built to government standards and specifications in conjunction with a residential subdivision. Upon inspection and approval the government agency took over the basin for operation and maintenance. What schedule and policies should be followed in clearing the basin? For instance, what if a storm occurs when the design capacity of the basin is only 50% of maximum (resulting from lack of maintenance following the last storm) and the basin overflows, causing damage to downstream properties? The property owners sustaining the damage then sue the government agency, alleging improper maintenance procedures and claiming, with the aid of their experts, that if the basin would have had 90% of its maximum capacity available, the overflow would not have occurred. It is then incumbent upon the agency to try to prove that its maintenance practices were reasonable and prudent and that not enough time lapsed between the storms to permit effective cleaning. It is obvious that the agency would have been in a far superior legal position if it had formulated, with professional and legal input, a written program or statement of policy in advance of assuming ownership of the debris basin. Even more important, the overflow might have been avoided if not lessened.

• Unwise and environmentally risky projects that result from demands by politicians and that require concessions to sound engineering and geologic practices. Locally elected representatives are particularly guilty of exerting such pressure since land developers usually play a large part in financing their election campaigns.

The Scarce Land Syndrome

One of the paramount reasons for the increase of environmentally related lawsuits stems from the fact that in certain sections of the country, particularly the urban west, much of the prime real estate having few inherent natural risks is already developed. What generally remains is hilly or mountainous land subject to landslide activity, low-lying land subject to flooding and/or subsidence, alluvial fan areas subject to debris and mud flows, and land encumbered by geologic hazards such as seismically active faults and zones of weakness within the rock that may lead to slope failures. Combined with this scarcity of risk-free land is the inflated social status of living in hillside terrain, with its natural beauty, panoramic views, and increased