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When an engineer designed a road that failed because the impermeability of the underlying soil caused water to accumulate between the soil and the asphalt, resulting in the road floating and the asphalt cracking, the project owner sued  for negligence and breach of implied warranty.  Because the soil condition was an unanticipated, differing site condition, the trial judge found the engineer was not negligent.  Surprisingly, however, the judge found the engineer liable under the warranty theory.  This was reversed on appeal because the engineer could not reasonably be held to a warranty standard when the failure of the road was based on a differing site condition.

In response to the owner’s argument that the adverse soil condition was “knowable,”  the court found “there was no evidence that any engineer knew or should have known that the soil beneath the road would not drain at all.”  A satisfactory remedy for the soil condition was implemented by the engineer using the recommendation of a geotechnical engineer that it retained for the purpose.  This involved the installation of lateral drains to remove the water.  These drains, according to the court, were not within the typical scope of an engineer’s work in designing a road. For these reasons, the court held in favor of the engineer. K.B. Weygand & Assocs. V. Deerwood Lake Land Co., 1991216, 1991344, 2001 Ala. LEXIS 120 (Ala. 2001).

Note: Since the lateral drains were a necessary part of the work, the costs of these would have been incurred by the owner whether the site condition was discovered before or after construction began.  As such, the necessary costs of installing the drains could not be attributed to the engineer in any event.  Assuming for purposes of argument that the engineer could have somehow been held liable, the extent of the damages owed to the owner would not include the cost of work and material for the lateral drains themselves, but only those extra costs (if any) attributable to removing and repairing previously installed work, and the extra costs caused by installing the drains after the fact instead of during the initial construction.  Costs that an owner would have incurred even if the project had been designed perfectly from the beginning cannot be attributed to the responsibility of the engineer.

Copyright 2001, ConstructionRisk.com, LLC – Virginia

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 3, No. 4 (Jul 2001).