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Construction Law Newsletter

Analysis of Rock, Soil and Underground Water Conditions Prior to Construction

Geotechnical engineering, a subset of civil engineering, focuses on the analysis of rock, soil, and underground water and its relation to the design, construction, and operation of engineering projects. However, in providing professional services to most civil engineering projects, geotechnical engineers and firms face associated liabilities including claims for contractual liability, professional liability, negligent misrepresentation, conflict of interest, and breach of fiduciary duties.

Role of Geotechnical Engineering in Construction

Geotechnical engineering is a multidisciplinary science; it involves the application of rock and soil mechanics, engineering geology and other related fields for design and construction purposes. Because nearly all construction takes place in or on the ground, geotechnical engineering plays a vital role in all civil engineering projects. The failure to adequately investigate the ground prior to the commencement of construction work often has prominent and costly consequences.

Among other issues, geotechnical engineers are typically asked to address the following problems:

  • The effects of potential earthquakes on the construction project

  • Whether the rocks and soils beneath a construction site can safely support the proposed project

  • The existence of groundwater conditions, whether such conditions may change in the future, and the impact they may have on the project

  • Impact of any planned excavation, filling or grading

  • Exploration and discovery of underground utilities and other man-made structures

  • Proper design of foundations necessary to support the proposed project

Geotechnical Engineering Liability

The most prevalent problems on a construction project are geologically related and occur below the surface. Thus, in broad terms, a geotechnical engineer who fails to comply with the standards of skill, diligence and care recognized by the geotechnical profession may be liable for damages caused by the engineer’s negligence. Similarly, the engineer may also be held liable for failure to use good engineering judgment in site exploration work. In addition, liability for breach of contract may be imposed on owners who issue geotechnical reports that have been negligently prepared by the owner’s consultants, and who expect that contractors will rely upon the reports in preparing bid estimates.

Limiting Liability: Contractual Provisions and Professional Liability Insurance

Due to the likelihood of liability for the failure to discover any detrimental soil, rock, or water condition, many in the geotechnical engineering profession have sought to absolve themselves from any risk whatsoever. Specifically, many geotechnical engineers include provisions in their contracts with owners and contractors, such as broad liability disclaimers, to exonerate themselves from liability stemming from their investigations of subsurface conditions.

In addition to including contract provisions to limit their liability, geotechnical firms may also purchase professional liability insurance. Liability insurance is desirable for many professionals, including geotechnical engineers, because in the event a claim is made, the insurance company will usually pay for the professional’s defense and the amount of a settlement or judgment (subject to restrictions within the policy and policy limits).

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