Legal and Liability Issues in Geotechnical Engineering

This paper describes 13 profession-endorsed recommendations for the conduct of design professionals engaged for the resolution of construction industry disputes. The recommendations have been endorsed by 35, mostly national organizations.

This case history illustrates some of the legal issues encountered in a landslide case including conveying complex and technical causation information to a jury, the possibility for jury confusion, the liability associated with taking over a project from another geotechnical engineer, and the conflicts of interest when defending your own geotechnical design. This case history also discusses some of the ramifications of fill placement on natural slopes surrounded by urban development such as, the importance of stress distribution analyses for determining the depth of influence of surface activities and the potential for overstressing weak materials below the depth of the subsurface investigation.

The purpose of this manuscript is to examine differing site conditions (DSC) from the subcontractor's, moreso the geotechnical specialty contractor's (GeoSC), viewpoint. The GeoSC, Type I and Type II differing site conditions, and other contract terminology shall be defined and explained herein. Various court interpretations regarding DSC will be provided and incorporated into the text. Lastly, geotechnical specialty contractor responsibilities for DSC claim recovery shall also be presented.

Disputes often arise on matters such as the foreseability of particular ground and groundwater conditions and disagreements on the fundamental behavioural characteristics of such conditions. The consequences of these disputes are usually commercially significant. The geotechnical expert is typically engaged by one or more of the parties in dispute to advise in the resolution of such matters. The expert typically undertakes the following roles in fulfilling his duties as a: technical advisor — expressing frank and possibly adverse opinions on the technical merits of his client's case to assist his client's legal advisors in pre-trial or pre-hearing negotiations; and an independent and impartial professional witness — writing reports and giving evidence at the trial or hearing to assist the court or hearing on matters within his expertise to achieve a just and equitable outcome. The expert is typically engaged by his client to fulfil these roles, often working as part of a team consisting of the client, other experts and lawyers. This paper briefly considers English legal procedures in dispute resolution and the roles, responsibilities and liabilities of the expert within those procedures. It also outlines the qualities and attributes typically required of the expert, based on the authors' experience in a range of disputes.

Design-build projects are challenging for the geotechnical professional. These projects are predominantly schedule driven, and as a result, the geotechnical professional is "late" from the date of notice to proceed. Geotechnical professionals can limit their financial risk on design-build projects by understanding the design-build philosophy, contracting method, project difficulty, design pace, post-design service needs during construction, and leveraging the few tasks that are under the geotechnical professionals' control. As more major public infrastructure projects are being designed and constructed under the design-build model, the geotechnical community must protect itself from financial losses on these very large and demanding projects. This paper summarizes the author's lessons learned on large transportation projects with the purpose of improving the financial outcome and professional satisfaction for the geotechnical practitioner on design-build projects.

The use of Segmental Retaining Wall (SRW) and Reinforced Soil Slope (RSS) structures are becoming increasingly common for site development projects. The authors have been directly involved with the specification, design, and construction of new structures, and the investigation and litigation of failures of these structures. It is our observation that most failures could have been prevented with proper geotechnical assessment, design coordination and review, and construction oversight and testing. Geotechnical engineers play a key role in the successful implementation of a SRW/RSS project, and may carry liability for the performance of the structure. This liability can be reduced or better controlled if the geotechnical engineer is directly involved in the planning, design and construction of SRW/RSS structures. This paper discusses a number of design issues that are critical to the successful construction of a SRW/RSS structure, including characterization of site subsurface conditions and reinforced backfill, assessment of global stability, and the establishment of proper design criteria. Involvement by the geotechnical engineer during site planning and design is equally important. The project delivery method commonly used on SRW/RSS projects is contractor-led design-build. This often leads to poor communication with design team members and reduces or eliminates the geotechnical engineer's involvement during the design. Construction oversight is needed to verify the wall is constructed properly and testing must be adequate to verify the design assumptions. A qualified engineer must coordinate both the oversight and testing to assure that test results and conditions are properly interpreted. Geotechnical engineers must be more pro-active with clients to ensure the opportunity to adequately investigate site conditions for a SRW/RSS, provide design recommendations or prepare the design themselves, and provide adequate oversight and testing during construction.