FOCUS UPON NEW YORK CITY
(by Mark C. Kriss Legal and Legislative Counsel NYSSPE)
Chapter 17 of the NYC Building Code has recently been amended by adding additional special inspection requirements with regard to construction operations influencing adjacent structures and with regard to tenant protection plans.* The new provisions provide for, among other things, inspections to be performed throughout the duration of the course of work. The details of these inspections can directly shift substantial responsibility for construction operations onto the special inspector, who ultimately has no control over construction operations and means and methods on a daily basis.
In sum and substance the new special inspection programs are aimed at creating additional oversight over construction operations by special inspectors, including professional engineers, who elect to serve as special inspectors. As participants in construction projects are well aware, the very nature of building creates an environment wherein the risk of property damage and personal injury is unavoidable. In short, particularly in a dense urban setting, most certainly including New York City, a substantial risk of litigation is part and parcel of all construction projects. Moreover, those living and working in New York City have, over many years, shown themselves to be particularly litigious.
Engineers electing to serve as special inspectors, pursuant to the newly adopted code provisions, would face a significant risk of having to defend themselves against claims, by property owners, building occupants and third parties, including adjacent property owners and occupants, notwithstanding having met the standard of care required in carrying out their professional responsibilities. Plaintiff attorneys use a shotgun approach, naming all parties involved in a construction claim, with little or no risk for filing a claim against a party who is ultimately found to be completely without fault in the matter. The Society urges all its members and the design professional community at large, to understand the potential risks in taking responsibility for these inspections.
The Society is in the process of advising New York City, that the best approach of ensuring safety at work sites would require that all special inspections be done by professional engineers, who have the requisite expertise in design and construction and who are afforded protection against the unreasonable risk of litigation outlined herein. This would entail the City providing indemnification for defense costs and full indemnity for all claims other than those founded upon gross negligence. In the absence of a new approach, which will mitigate the litigation risk faced by the professional engineering community, the new Code provisions will likely prove to offer marginal improvement in public safety, if any.
(*NYC BC 1705.25.2 et seq. and BC 1705.26.1 and BC 1705.26.2.)