Originally published in DRI - For the Defense. By Hakim Bouadi, Stephanie U. Eaton, Matthew W. Georgitis, and Robert A. Plichta

Bringing an engineer and an architect onto the legal team as soon as a building catastrophe happens has more than just legal benefits.
 
Imagine that you are legal counsel for a governmental entity, such as a city, and you are faced with addressing a public high school shooting, a flood at the municipal police department, or the collapse of part of the city's new civic center. In the wake of the November 14, 2019, shooting at Saugus High School in Santa Clarita, California, the June 2018 flooding of a police station in St. Louis, Missouri, after heavy rainfall in the area, and a November 2019 partial collapse of the Fourth and Race mixed-use building under construction in Cincinnati, Ohio, these scenarios are all in the forefront for attorneys of these municipalities and those involved in the incidents. In situations such as these, on whom can the attorney call to help identify crucial immediate, short- and long-term actions to address these serious incidents? Is there anyone who can help you guide your client in becoming more proactive, instead of being reactive, in response to possibly catastrophic consequences for the city and its citizens impacted by these events?

These are important questions to consider, and the answers may rest on the shoulders of construction industry experts. In fact, the less familiar the construction law practitioner is with the actual construction codes, processes, scheduling, products, and potential liabilities, the greater the importance of involving outside expert consultants early in the construction process. Once a dispute arises among the parties involved in a construction project, bringing one or more experts into play early in the process can assist parties in targeting issues for pre-litigation resolution and in developing theories, evidence, defenses, and strategies that shape the litigation, and ultimately, the outcome at an alternative dispute resolution forum or trial.
 
In the sections that follow, we will describe three hypothetical scenarios.   We will present the hypothetical scenarios from the perspective of a city attorney whose municipal client embarked on three major construction projects and encountered differing problems with the new public-owned facilities after construction. After presenting each scenario, select potential factual and legal issues raised by the scenario will be explained from the perspectives of construction industry experts and attorneys.

USING EXPERTS to NAVIGATE LEGAL AND CONSTRUCTION ACTION PLANS
 
Engaging an architect or engineer as a trusted advisor will provide a resource to an attorney to help identify potential information that will need to be collected and preserved for analysis of  construction-related incidents and identification of  any possible defects in the design, construction, or implementation of safety measures for construction projects.
 
Initially, after an incident, expert involvement generally is reactive, and it is generally divided into three phases: (1) immediate action; (2) short-term investigation and assessment; and (3) long-term evaluation of standards and expert testimony provision. After completing these phases, the consultant would assess the facility from and provide proactive suggestions for improvements to practices and design that could protect a client from future liability. As mentioned, in the three scenarios that follow, the client is a city.

SCENARIO ONE: PUBLIC HIGH SCHOOL SHOOTING

In approximately 2012, a local school district, run as a subdivision of the city government, decided to have a new high school facility built to accommodate the continued community growth. At that time, the school district advertised a request for proposals (RFP), calling for architectural firms that specialize in school facilities. The RFP process included meeting with school district board members, the principal, and select teaching staff members to understand the needs and desires of the community, district, and teachers. Due to recent national attention focused on active shooter scenarios on school campuses, safety was specifically raised as an issue to be addressed during the school design process.
 
In the spring of 2017, five years later, after the school’s completion and the building had started to house students, the city attorney received a call informing her that the school was the scene of a shooting. The shooter was reported to have been one of the students of the new school. During this event, numerous students and teachers were injured, and some lost their lives.
 
The city attorney in this scenario would be asked to assess the potential legal claims against and on behalf of the city linked to the design and construction of the school facility.

Legal and Factual Issues

First, the city could face a lawsuit by representatives of the shooting victims seeking to impose liability on the city for the shooting. The owner/operator of a building owes duties to the building occupants to protect the occupants from hazards, including those caused by criminal activity. See In re September 11 Litig., 280 F. Supp. 2d 279, 298–302 (S.D.N.Y. 2003) (discussing building operator duty to protect occupants from fire hazards caused by criminal actors); Washington v. Albany Hous. Auth., 297 A.D.2d 426, 746 N.Y.S.2d 99 (N.Y. App. Div. 2002) (discussing landowner duty to protect building occupants from foreseeable fire hazards). This duty can encompass establishing proper procedures in the event of a hazardous incident, as well as having a proper building design and maintenance. See In re September 11 Litig., 280 F. Supp. 2d at 302. Defenses such as governmental immunity may be available. See, e.g., James v. Wilson, 95 S.W.3d 875, 910 (Ky. Ct. App. 2002) (finding no liability for school officials in school shooting scenario on the basis of qualified official immunity). But public schools have been held to owe certain special duties to protect their students from foreseeable acts of violence in some jurisdictions. See, e.g., Regents of Univ. of Cal. v. Super. Ct., 4 Cal.5th 607 (Cal. 2018) (finding in the context of student-on-student violence that universities owe a duty to take reasonable steps to protect students from foreseeable harms during activities tied to the school's curriculum).
 
In In re September 11 Litigation, the U.S. District Court for the Southern District of New York discussed the nature of the duties owed by the owner of the World Trade Center to the victims of the September 11 terrorist-related aircraft crashes on September 11, 2001. 280 F. Supp. 2d at 298–302. The court noted:

[T]he parties and society would reasonably expect that the [owner] would have a duty to the occupants of the Twin Towers in designing, constructing, repairing[,] and maintaining the structures, in conforming to appropriate building and fire safety codes, and in creating appropriate evacuation routes and procedures should an emergency occur.

Id. at 300. The court went on to find that the harms from fire caused by a terrorist attack were foreseeable enough to create a duty on the part of the owner of the World Trade Center because the owner knew about other previous fires in the building, including a fire in 1993 ignited when a terrorist caused an  explosion in the parking garage beneath one of the towers, and a fire caused when an airplane had nearly collided with the towers in 1981. Id. at 300–01.
 
A court could see the school’s duties in the hypothetical scenario described above in the way that the Southern District of New York viewed the property owner's duties regarding the September 11 attack on the World Trade Center, even though some states recognize governmental immunity as a defense to a school shooting case. See, e.g., James, 95 S.W.3d at 910. Unfortunately, as school shootings have become more common,  designing buildings to deter active shooters has gained popularity in recent years. See Mimi Kirk, How Architecture and Design Can Hinder Active Shooters, Architect (Aug. 22, 2018),
https://www.architectmagazine.com. Additionally, the National Fire Protection Association (NFPA) has established a standard for active shooter responses. Zack Winn, NFPA 3000 Fast-Tracked for Active Shooter Response Standard After Parkland Shooting, Emergency Management, Campus Safety (Mar. 12, 2018), https://www.campussafetymagazine.com. In fact, active shooter scenarios have garnered so much attention that the NFPA, for only the second time in its 121-year history, authorized its active shooter standard as a "provisional" standard, abbreviating the approval and comment process, to address the "serious life safety concern." Id. Therefore, a court could view an active shooter scenario in a school as foreseeable such that the property owners should take reasonable precautions to prevent or mitigate such an event.
 
Establishing the standard of care for such claims will be difficult, given the relative youth of the idea of designing facilities to deter active shooters. Numerous issues could come into play, including whether the city or architectural firm should have engaged an outside security consultant and the safety aspects of the architectural firm's final design. Accordingly, the city may decide to point the finger at the architecture firm that designed the facility. If the city wishes to bring a claim associated with the architectural firm's design of the school, an expert will be required. See, e.g., Kaitbenski v. Tantasqua Reg'l Sch. Dist., No. 06-2556, 2009 WL 3086239, at *2 (Mass. Super. Aug. 13, 2009) ("Generally, although not in every instance, expert testimony is necessary to prove the applicable standard of care in a case where negligent design or engineering is alleged.") (citing Esturban v. Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 911–12, 865 N.E.2d 834 (2007) (affirming that expert testimony was required to prove negligent design of an escalator)); Atlas Track Corp. v. Donabed, 47 Mass. App. Ct. 221, 226–27, 712 N.E.2d 617 (1999) (affirming that expert testimony was necessary to prove standard of care of reasonable engineer).
 
Because there is currently no reported case law on design professional liability in active shooter scenarios, expert testimony concerning the standard of care will be especially vital, including testimony concerning available standards, such as the standard published by the NFPA, or "facilities master plans" adopted by local municipalities, such as a $2 billion plan unveiled on November 26, 2019, in Guilford County, North Carolina. See Facilities Master Plan, Guilford Cnty. Schools, https://www.gcsnc.com/Page/62685.
 
The city may also consider initiating claims against the builder for either failing to carry out the architect's design properly, or for the builder's own negligent design in design areas delegated to the builder by the architectural firm.  If the builder engaged in value engineering for parts of the building relevant to the shooting incident, whereby the builder engaged in a review procedure to improve the cost of the building by examining the functions of various areas of the buildings and developing alternative more cost effective systems where possible, then those areas may also be targeted in a lawsuit. 

Expert Involvement
 
Whether the city eventually will defend claims made against it, or pursue claims against the architectural firm or the builder, early expert involvement will be key. Having an outside architect review the facility plans at an early stage could rule out, or provide early support for, claims against the architect. This is especially true since these claims involve an emerging field in architectural design. With no reported case law to guide the development of these claims, legal counsel will need to rely heavily on outside expert consultants to inform counsel of the reasonable expectations and industry standards concerning designing buildings to hinder active shooters. Similarly, early site inspections by an architect and an engineer will assist legal counsel in assessing the validity of claims against the city and the builder before the city wastes time and money pursuing meritless claims or inadequate defenses.
 
But first, the primary focus would be to maintain the overall safety of the students and staff and expedite a successful response by emergency personnel. Engineering expertise can help by immediately identifying vehicular access and existing evacuation paths to help the first responders develop their plan. Cooperating and collaborating with law enforcement also will be important because law enforcement will put numerous restrictions in place preventing access to the site both during and after the incident.
 
Immediately after completing the initial safety analysis, the city will need to document existing conditions to address potential future claims and simultaneously develop procedures for continuing operations. It is critical to involve an engineer in documenting the existing conditions to support the school district effectively in future litigations. The engineer’s support will be critical in performing a thorough survey of the conditions and completing detailed, photographic documentation. At the same time, the engineering expert will need to communicate with the building maintenance team need to identify and  collect construction documents, known history of the construction, the maintenance schedule, and other items related to the construction. Such early document collection will enable the engineering expert to assess the issues that may be related to construction or design and ensure adequate data preservation.
 
The architect will need to collect data early to develop an action plan for moving forward. Some of that data would include (1) how school officials were notified about the incident; (2) student and staff safety procedures; (3) communications with first responders; (4) school lockdown procedures and methods; and (5) how first responders can and have accessed the building.  Throughout this initial phase of involvement, it will be critical that the architect communicate with the city attorney. As a trusted advisor, the architect can identify information that the city will require to assist preliminary investigation. Additionally, the city attorney can rely on the architect to gather questions that may be identified by others and provide research and information to respond.
 
As the investigation progresses, the architect will need to acquire school documents that will aid in providing insight into the design, policies, and procedures of the school. Some documents that the architect needs will overlap with those needed by the engineer. Among others, the architect will need these documents: (1) original and as-built construction drawings, including plans and specifications; (2) student and staff evacuation procedures; (3) documents about security in and around the school; (4) documents about student and staff staging areas; (5) documentation of the scene in the areas involved with entry and the pathways used; and (6) plans in force by the school related to shooting events. The architect can analyze design and construction aspects that may have contributed to the incident, as well.
 
Over the longer range, the engineering expert will need to work with the facility management to learn about the issues related to the building functions and integrate new design concepts into those building functions. In addition, both experts, architect and engineer, will start communicating with the municipality and the school district to identify design considerations and staff training to help them understand the building functions,  including the integration of safety elements with the constructed conditions.
 
As time progresses, the experts must evaluate  numerous factors to determine whether the incident was a “foreseeable” event. The analysis should include the following: (1) design considerations related to safety and security of students and staff; (2) staff training; (3) incident communications with the administration and law enforcement; (4) student drills; (5) plan of action with first responders; and (6) safety implementation, including where measures were implemented and their cost.
 
As the school resumes operations and the experts provide appropriate support to the municipality to integrate new safety elements into the building construction, assessing what occurred can begin. A detailed review of the collected documentation allows the experts to identify potential design or construction failures that affected the school safety. This will be performed by reviewing the construction documents, the communication during construction, and any safety decisions made. This process will identify responsibilities in any building-integrated safety failure. Such lessons can then be used to develop improved design procedures. Additionally, the integrated safety features and conformance to existing standards can be evaluated.

SCENARIO TWO: CITY POLICE STATION FLOOD
 
A local architectural firm specializing in municipal facilities won a design competition for a new state of the art police facility. This facility was to replace an old, aged police station that had exceeded its normal life expectancy. The city undertook this major municipality project. The new facility consisted of an upper level consist housing the 911 dispatch center, administration offices, sally port, and prisoner lockup operations, and a working lower level with police officer lockers, evidence lockup, a mechanical room, an electrical room, a lunch room, a training room, a fitness room, and communications computer systems.
 
According to the owner–architect agreement, the architectural firm was to provide a design solution meeting the needs of the municipality, develop the necessary construction documents in coordination with consultants, administer construction contract administration, and provide construction-site oversight. Working with the selected general contractor, the architectural firm made regular site visits during construction, responded to Requests for Information (RFIs), attended regular construction meetings, and communicated with the general contractor and the municipality.
 
As part of the architectural firm’s services, the firm provided detailed construction documents and specifications that identified numerous design solutions, specifications for various equipment, and specifications for the installation of various high-tech systems. At the request of the city, the mechanical, electrical, and communications systems were designed for installation in the lower level of the facility. However, the systems were not designed to accommodate a potential flood on the station’s lower level, which could potentially knock out the entire operations of the police station. In addition, the foundation system included a newer technology for water management and industrial pumps for the evacuation of water and sewage systems.
 
During a mid-summer rain event, the weather conditions turned to an unexpected major rain. This led to extended hours of rainfall, saturated soil, and overflowing river banks. Due to this severe rain storm, the local infrastructure was taxed to a point where sewer lines were compromised, and streets began to overflow throughout the community. Consequently, the police station experienced massive flooding and sanitary backup throughout the lower and upper levels of this new facility.
 
As a result of that storm and sanitary backup, every plumbing fixture in the police station began to back up into its respective area of the building. In the prisoner lockup area, toilets and lavatories experienced sanitary backup onto the floors. So the police officers needed to move the prisoners to another facility. This required coordination with other local police departments to accept the prisoners on a short-term basis. In addition, the overflow of sanitary waste exposed prisoners to a potential health risk.
 
Police department staff were exposed to serious health risks from both the sanitary and storm water backup. Sanitary backup was experienced through lavatories, toilets, and sinks at the lower and upper levels of the facility. This backup continued for several hours, which caused the backup to accumulate several inches, compromised the environmental atmosphere within the building, saturated the carpeting, and damaged cabinetry and drywall, to name a few areas.
 
The flooding also focused the police staff on protecting the facility and attempting to stop the flooding in the facility, and they neglected outside emergencies reported by the public. In addition, the 911 dispatch operations were temporarily shut down, thereby preventing residents from using the 911 emergency communications system.
 
Investigation after the incident revealed that the following contributed to the flood: (1) an inadequate foundation drainage system; (2) improper design and installation of the sewage system; (3) design defects related to operational components (drainage and plumbing); (4) a mechanical system that was compromised by the flood; and (5) an electrical system that created an electrocution hazard.
 
The city attorney has been asked to assess the city's potential liabilities and claims associated with the flood, specifically liabilities and claims associated with construction of the facility.

Factual and Legal Issues
 
The city would probably anticipate claims from the public, employees, and prisoners associated with the flood at the facility. Claims may also exist against the architect and builder connected to their design and construction of the facility. L. H. Bell & Assocs., Inc. v. Granger, 112 Ariz. 440, 445, 543 P.2d 428, 433 (1975) (allowing a third party to claim damages against the engineer that designed a bridge). The potential claims against designers/builders by third parties could also create indemnification and/or contribution claims between the city and the designers/builders. These claims could be due to contractual indemnity provisions between the designer and the owner or due to common law indemnification. See Product Liability Group, Primerus Defense Inst., A Survey of the Law of Non-Contractual Indemnity and Contribution (2012), https://www.primerus.com (surveying the law on indemnity and contribution in all fifty states). One crucial issue in any dispute will be whether any of the parties involved should have anticipated and been prepared for the magnitude of the rain event that caused the flood. L. H. Bell & Assocs., Inc., 112 Ariz. at 445, 543 P.2d at 433 (allowing claims against a third party for damages caused by a 100-year flood but noting that claims between the owner and designer could be held to different standards established in the contract). Expert testimony will likely be required on this issue.
 
Additionally, several design elements were brought into question by the flood that will require expert testimony to prove the standard of care, including the design of the foundation drainage system, the design of the sewage system, and the placement and design of the mechanical and electrical systems. See, e.g., Kaitbenski, 2009 WL 3086239, at *2. Preliminary facts available to the city attorney also suggest that the builder may have been at fault for failing to carry out the architectural firm's design properly. Experts will be required to assess the reasonableness of the architectural firm's design, as well as the builder's execution of the architectural design.
 
The city will also need to be aware of the potential obligation to safeguard confidential records, both electronic and physical, for the inmates and employees and the related issues. Dittman v. UPMC, 196 A.3d 1036 (Pa. 2018)(holding that a defendant owes a duty of care to safe guard sensitive personal information if the defendant undertakes to collect and store such information). If a claim is made against the city for failing to safeguard the sensitive personal information, an expert would be required to testify about the safeguards that would be required to prevent loss due to the flood and the foreseeability that this information could be lost when a flood occurs.

Early Expert Involvement
 
First and most immediately, the experts will need to perform a preliminary life-safety assessment of the building to identify areas that may be compromised before others access the building. Maintaining communication with the city attorney will be critical. The architect will need to update the city attorney continually regarding the status of the building, safety, and a preliminary action plan to remediate the loss. In addition, the city will need to  reestablish the 911 communications system and relocate on site-prisoners, secured evidence materials, temporary staff, and vehicle staging. Engineering expertise will be required to develop alternate plan of operations that will include transferring emergency communication to adjoining jurisdictions. This requires assessing available technology and developing tools to forward all communications seamlessly. Additionally, the engineering expert would observe the developing weather closely to assess future rain events during the time that it will take for the water in the police station to recede. This step will require technical analysis of the weather.
 
After taking immediate action mentioned above, the architect will need to investigate the building further  to determine in detail the specific areas that have experienced a loss. This may include material loss, operational loss, mechanical/electrical loss, or environmental loss. Each of these must be itemized to develop a repair scope. During this part of the investigation, the architect will need to acquire various records related to the building, which may include: construction drawings and specifications, permits, contractor names and companies, change orders, as-built documents, and meeting minutes, to establish the design and construction practices used for this building. The architect will analyze the information and preliminarily identify who may be responsible for the identified failures.
 
The engineer will need to perform an overall assessment of the facility and identify areas that are safe to occupy and areas that require stabilization procedure before occupation. This evaluation and stabilization need to be completed systematically, thoroughly, and within a reasonably short period of time to permit safe reoccupation of the facility. Once overall safety for personnel occupation is assured, the engineer will focus on the communication and electrical systems to restore power and communication, which will allow the police station to provide the required emergency services for the community. Simultaneously to performing the engineering work to reestablish the safety and functionally of the building, the engineer will help collect detailed information about the damaged conditions, identify water access points, and locate and save all construction documents. The engineering guidance is necessary at this stage to preserve the documents and protect the owner in case claims are filed in the future.

Once the building can be put back into temporary service, the architect will need to determine the specific area or areas that were affected by flood loss. This work will enable the architect to develop a scope of service for repairs, develop the necessary construction repair documents, and be involved in the repair observation. During this phase, the architect will rely on the previously collected documents and perform a code review associated with the new repairs. During this same time, the engineer will analyze causation to identify factors contributing to the flood and the responsible party or parties. The information gathered shortly after a flood event is critical to this analysis. The engineer expert also will develop long-term solutions that will improve the station performance that can withstand or avoid future flood damages. Developing and implementing solutions  will require preparation of  a flood-risk analysis at the site, reviewing all existing conditions, judiciously strengthening and introducing enhanced flood protection (such as flood doors and windows), and relocating electrical and mechanical systems an elevated area with lower flood risk.

SCENARIO THREE: PERFORMING ARTS CENTER COLLAPSE
 
The city decided to build a new major performing art center to serve the growing community and engaged a design team to develop drawings for the facility. After a bidding process, the city hired a contractor to build the art center, which exhibited a signature wide center dome.
 
The art center opened successfully and had a good reception. However, during a performance, a heavy snow accumulated on the roof, leading to a sudden failure of the dome, which shifted several feet, causing large cracks in the steel columns and resulting in unstable conditions. Ceiling and wall elements fell onto the patrons, resulting in severe injuries.
 
The art center was designed with several exits that are required during an emergency. Some of the emergency doors were obstructed with storage boxes that were used to move equipment into the center. In the rush to open the facility, the boxes were stored wherever feasible without fully assessing the effect on safety and operations. These boxes hindered the evacuation and caused a large number of people to become trapped and to seek other means of egress. In the resulting chaotic conditions, more injuries occurred.
 
Operation of the premises required staff training in emergency procedures and evacuations. However, to achieve an early opening of the facility, the city opted to start operation before completing the training. Several staff were not fully aware of the emergency paths and evacuation procedures and did not provide appropriate direction to the patrons, leading some in a wrong direction.
 
The engineer of record designed the primary elements of the dome that were formed by the steel beams, columns, and braces, but the engineer delegated the design of the connection between these elements to the contractor. The construction drawings provided by the engineer to the contractor were incomplete and did not provide clear information on the force transfer to the connections. The contractor decided to proceed with the design knowing that some information was missing, assuming that a review by the engineer was sufficient to address the missing information. The contractor opted to limit the connection-design scope to the bolts and welds, attaching one member to another, but the contractor did not perform a complete connection design that included the sections of the beams and columns located within the connections. The contractor assumed that the engineer had already checked the connection zones and did not communicate this assumption to the engineer.
 
The engineer received the connection-design drawings from the contractor for review and verification. However, in the rush to prov