A commonplace — and often costly — error leading to infrastructure failures can occur when the owner’s desires for cost control merge with the designer’s or builder’s generic assumption that — even for facilities dedicated to manufacturing specialty products like computer chips — a wall is a wall. That is, a wall (and a roof) serves its purpose as long as it shields the interior from rain, wind, cold, or baking sunshine, and provides a reasonably comfortable space for conducting whatever business activity will take place inside.
True, your computer chip manufacturing facility’s clean rooms absolutely must have an HVAC system that delivers a contaminant-free atmosphere. But the building envelope also must be designed and constructed so that it will not inadvertently foster environmental degradation, shortening the useful life of the HVAC system. Ignoring or giving short shrift to the building envelope as a multifaceted ecosystem — for drainage, air circulation, and energy conservation, to name just three — can result in significant deficits that present fertile ground for litigation-inducing deterioration of other structural components.
Using the “Reasonable Person” Standard
Law schools teach that the so-called “reasonable person” standard applies to virtually every area of human endeavor, at least insofar as performing below it might result in the imposition of damages following a lawsuit. No matter which of several potential pathways to liability — i.e., various formal causes of action and theories of recovery — is involved, a lawyer is always on the lookout for situations where a lay jury can easily determine that someone “just didn’t act right.” That is to say, they didn’t act as a reasonable person in the same circumstances would have done.
A commonplace error leading to infrastructure failures can occur when the owner’s desires for cost control merge with the designer’s or builder’s generic assumption that a wall is a wall. Appalling legalese notwithstanding, a trial lawyer’s dream case is one in which a lay jury can appreciate that the error causing the client’s damages is fundamental, easily understandable, and one that the jury members, themselves, likely would not have made. Hyper-focus is something that a jury can understand.
So is the significance of reducing maintenance costs, energy consumption, and environmental impact, all of which are reasons to pay proper attention to the building envelope. It simply makes good sense.
Picture the plaintiff’s expert witness saying to the jury: “Not only would [insert your choice of envelope-enhancing measures here — say, for instance, triple-glazing the building’s windows] have prevented the moisture accumulation [or another foreseeable malady] that caused the environmental failure we’re talking about here, it also would have saved enough in energy costs to pay for itself in two or three years.”
A jury can get that. A jury will believe that taking those steps is something a reasonable person would have done. Failing to do so equals negligence. Hyper-focus negates ordinary care. Once they believe that, the defendant is (pardon the legalese) toast.
Marc Gravely, Founder, Gravely P.C.
Marc Gravely is the founder of Gravely P.C. and the author of the best-selling book, “Reframing America’s Infrastructure: A Ruins to Renaissance Playbook.”