Article: William H. Gordon Associates, Inc., v. Heritage Fellowship Church

    William H. Gordon Associates, Inc., v. Heritage Fellowship Church

    Engineer’s liability for failure of rain tank that it designed; reliance on manufacturer’s information; standard of care; and contractor’s responsibility

    Written by Hugh Anderson, EJCDC Legal Counsel

    Published February 23, 2016, in EJCDC Newsletter February 2016, by Linda Yelton

    Issue: Engineer’s liability for failure of rain tank that it designed, including issues of reliance on manufacturer’s information regarding the tank, standard of care, and contractor’s responsibility. William H. Gordon Associates, Inc., v. Heritage Fellowship Church. Supreme Court of Virginia (2016).

    Summary: Heritage Fellowship Church retained Gordon to conduct various civil engineering tasks associated with the site of a new church. Gordon designed a rain tank that would be located ten feet under the new parking lot—the tank would be an initial collection point for stormwater. As the project proceeded, the contractor raised concerns about the suitability of the rain tank, noting that the local water table was high, and posing questions about the details of installation. Gordon did not reevaluate the rain tank, or provide any additional information about installation, but did provide assurances to the contractor that the ground water level would not affect the rain tank. Several months after installation, the tank and the parking lot above it collapsed, resulting in a substantial rework, and delays in occupancy of the church.

    In subsequent litigation, the contractor and the owner offered expert testimony that Gordon had breached the professional standard of care. In reply, Gordon’s experts contended that the failure of the rain tank was the result of construction errors by the contractor, and that Gordon had met its standard of care by relying on the tank manufacturer’s product information. The trial court concluded that the contractor had adhered to Gordon’s design, and that the sole cause of the collapse was Gordon’s failure to meet the professional standard of care. Gordon appealed.

    Decision: The Supreme Court of Virginia affirmed the lower court’s ruling against Gordon. (The court did decide in Gordon’s favor with respect to certain damages issues, and remanded the case for consideration of the impact of the owner’s settlement of a claim against an inspection firm.) The court examined the record and found ample basis for affirming that Gordon had not met the professional standard of care.

    The court noted testimony that the specifications regarding the rain tank were prescriptive, and the contractor’s duty was to follow them—refuting the notion that the construction contract had shifted design liability or duties to the contractor. Expert testimony in the trial court had also been critical of Gordon’s reliance on manufacturer’s generic literature, and failure to conduct due diligence on the tank’s location and the impact of the high water table. The design was labeled “not clear, constructible, or very likely to serve its purpose,” apparently with respect to lack of direction regarding the need for a very level tank base and “nearly perfectly perpendicular” vertical panels. The engineer’s failure to answer the contractor’s question regarding installation was criticized.

    The decision cites testimony from the contractor’s and owner’s experts favorably, but the point seems to be that there are factual grounds for affirming the lower court—the intent does not seem to be to establish broad precedential rules of law regarding what is and what is not within the standard of care. For example, in general support of the lower court’s finding that the engineer did not meet the standard of care, the court cites testimony by an expert that the standard of care requires an engineer “to reexamine its original plan when the contractor submits an RFI about the suitability and performance of a structure.” That may have been a valid point in the context of the church project, but perhaps was not intended by the Virginia high court as a new rule of law for design professionals. As another example, the court reported that an expert had opined that “an engineer that adopts the general plans and specifications prepared by the non-engineer manufacturer falls below the standard of care.” It would seem reasonable to take this as a project-specific statement regarding Gordon’s liability, rather than a holding that has absolute application to all claims against design professionals; in some situations, a design professional’s reliance on third-party information may be routine and entirely justified.

    Comment: The court here correctly employed a professional standard of care analysis in determining Gordon’s liability. That liability was strongly supported by expert testimony offered by the owner’s and contractor’s witnesses at trial.

    EJCDC recognizes that it is sometimes necessary for an engineer to rely on information from others. E-­500 provides that:

    Subject to the standard of care set forth in Paragraph 6.01.A, Engineer and its Consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards.

    Note that this is not meant as a blanket statement, to be blindly applied, but rather should be applied in coordination with the professional standard of care. The engineer must use professional judgment in deciding when reliance is appropriate, and to what degree site-specific or project-specific factors must also be taken into account.

    Article republished with permission of EJCDC.  The Engineers Joint Contract Documents Committee (EJCDC) is a joint venture of three major organizations of professional engineers.

    For more information about EJCDC, please visit the website

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    Construction Productivity – 2016

    In order to properly manage Construction Productivity, you must first review the Construction Culture.  Ask yourself if your company culture includes the following items: a. promote team work, b. recognize the value of balancing work and family, c. being an equal opportunity employer, d. being a drug free work place.

    Construction Productivity is not being handled properly by many construction people today. A few things the Project Manager is to critique and analysis are as follows:

    A. Peoples inability to segment delays, impacts and disruptions on a contemporaneous basis, and isolating and capturing the coat of productivity loses.

    B. There is a lack of a comprehensive project cost management system on our project.

    C. The failure to keep your CPM schedule updated so it shows all project activity.

    Construction safety has been proven that it is essential that company and project leadership be committed to eliminating accidents and achieving a zero-accident environment. In a clearly defined safety culture reinforced with effective proven best practices, training, planning and clear significantly reduced accidents on their project.

    The same is true for improving construction labor productivity.  

    The Project Manager must critique all of the following as to their effect on productivity:

    1. Any overtime required will be controlled by the circadian rhythm of the crews involved.

    2. Change orders may require additional time.

    3. The demand for additional resources.

    4. Night crews cost extra.

    5. Any RFI’s need time to be resolved.

    6. The change in weather may affect productivity.

    Cluttered projects have low productivity. When sites are cluttered and disorganized, workers have to work around the clutter and waste time searching for missing components. Contractors need to provide adequate facilities for disposal of trach efficiently and to provide appropriate general project cleaning.

    Storage and work areas that will be muddy should be improved using dry earth fill, gravel, plywood or planks. Stairs and emergency exits should be kept open at all times.

    Clean and orderly projects will also promote good safety practices and reduce the risk of accidents.

    One of the most significant claims by contractors is lost productivity. Many of us agree that a lost of productivity is one of the least understood and most difficult claim to quantify.

    There is a lack of comprehensive and centralized project cost management system on most projects. There is also a lack of effective procedures being put in place for identifying, coding, capturing and measuring labor productivity, especially when and where delays, impacts and disruptions occur.

    The failure to keep a project CPM Schedule properly updated and reflecting all delays and actual performances as it occurs will reflect on the critique of productivity. The inability or failure to segment delays, impacts and disruptions and then to document the cause and effect on the cost of productivity losses is a big problem.

     The Project Manager must critique the CPM Schedule sequence and all concurrent activities as this may affect the project productivity. Also know the adequate resources required for each activity. 

    The failure to agree on the time element results in a compressed schedule that creates change work conditions and contributes to possible impact cost on unchanged work and the potential for lost productivity.

    Impact claims usually include damages for lost labor productivity due to delays, interferences, disruptions, overtime, and accelerating performance. Some of the causes of low labor productivity include:

              1. Lack of ability to maintain the CPM Schedule

              2. Resequencing of activities

              3. Overriding the labor cost in the original project cost estimate

    Norman F. Jacobs, Jr. CSI Emeritus, AACE, ASPE, IIE, PMI, SAR