Abstract:
This 30-45 minute talk and power point will address the following “legal†and “forensic†considerations relative to landslides, causation, forensic analytics, and how post-slide investigations and legal resolutions occur and often falter with inadequate, initial investigation and “crime scene†capture:
1. The General Legal Framework of “Duty†- by adjoining landowners, by Upslope to Downslope owner, by Contractors, Design Professionals, Public Entities, and Drainage or Pipeline Easement Holders (leaky pipes). 5 minutes
2. Usual Risk Management Contract Language and Programs - Indemnity, Additional Insured status, Builders Risk, Flood Insurance, Waiver of Subrogation, pre-construction surveys. 5 minutes
3. Risks that occur fall into three general categories: a) Risks that were properly identified, appreciated and planned for, but poorly executed/impacted by an unforeseen site event; b) Risks that were not properly identified, appreciated and planned for, and created a “set stage†for the construction team to run into the Risk (Donner Party Risk - short cut taken across the Sierra with No real information or test drive); and c) Risks neither properly identified and planned for, and poorly executed (the Titantic-Iceberg/Lifeboat Count Risk). There is a need once a slide occurs to quickly assess how many of these “risk misses†occurred, so evidence is timely preserved for later evaluation in loss allocation procedures (insurance, expert opinions, and lawsuits). 5 minutes
4. With that background, compare how Earthquake, Hurricane, Wildfire and other calamities have forensic models and forensic teams arriving on site immediately for broad scientific and empirical purposes - Earthquake and Tornado chasers, for example. Compare Landslide Forensics which are usually more property owner driven, not calamity driven, and more ad hoc with less of a developed “standard operating procedureâ€. Driven by misaligned interests by the participants - some want recompense, others seek to shield themselves from liability. Academic and Scientific “Cause and Effect†risks being “less blind†than in these other calamity situations. 10 minutes.
5. Early Insurance coverage recognition is critical, to avoid forensic costs with no productive outcome. Who will finance the repair is as large a fight as who is targeted as the causal actor or actors, and victims. 5 minutes.
6. Like all subsurface issues, causation will usually have competing views, and depend on forensic research, tell tale surface or boring indications, and engineering judgment. In court, its often the battle of the experts. 10 minutes.
7. Some recommendations then are given in the last 10-15 minutes on “emergency forensic response†teaming and scoping:
- Team assembly
- Team leader - carrier, lawyer, engineer or owner?
- Scope
- B Team or Red Team, and testing and revising working hypothesis
- Including or not adverse groups in the team - transparency v confidentiality
- Diagnosis, Scope, Estimating, Costs, Peer Review, Claim Submissions and Responses
- Mid term monitoring - Piezometers, etc.
- “NONE OF US ARE AS DUMB AS ALL OF US†- techniques against false idols, group think, and Forrest Gump running out the Stadium with a false fix on an incomplete assessment
The Talk will be supported by a Power Point and intended to be Interactive.
Mark J. Rice, markjrice@msrwlaw.com