03 Oct care for the circumstance
1. State the soil engineer’s general professional duty of care. Then state fully the specific professional standard of care for the circumstances of this case that Haverley was obliged to follow.
2. Did Haverley breach the standard of care? Why or why not? Make full use of the facts, expert testimony and relevant law.
3. If you find that Haverley breached the standard of care, was his breach an actual cause of Maku’s death? Again, make full use of the facts, expert testimony and relevant law, including specifically using the but-for test.
4. If you find that Haverley breached the standard of care and was an actual cause of Maku’s death, was his breach a proximate cause of Maku’s death. Once again, make full use of the facts, expert testimony and relevant law, including specifically using the foreseeability test.
5. Was Maku negligent in whole or in part for his own death? Make full use of the facts and relevant law, including comparative fault under the ordinary standard of care.
3-4 pages
FACTS :
The contractor, Cal Trons Corporation, followed the OSHA regulation by hiring Arthur Haverley, a young soils engineer, to design a suitable support system. Haverley relied on the geotechnical report prepared by Mega Engineers from 1998 when the sewer line was first installed. The Mega report concluded that soil collapse in this sector was highly unlikely and did not recommend any specific form of trench support. No trench support was used at the time of the original installation of the pipe, because the installation was entirely done by mechanical equipment and the only time anyone was in the trench was when a worker in a harness was lowered into the trench to check the fittings. However, information about the installation method used was not contained in the Mega report. Haverley advised the contractor that no specific trench support was required under the circumstances. Cal Trons therefore chose and used the least expensive, movable small area trench support system made by Dirtco, Inc. On April 1, 2005, Uka Maku, an entrepreneur, was buried alive when a narrow trench that was excavated eight feet deep with a backhoe to repair a sewer line, suddenly collapsed on him. By the time the soil was cleared, he was dead. Maku jumped into the trench to retrieve critically important notes on a new cell phone (the iPhoney) designed to compete with Apple that blew out EGR 445: Role of Design Professionals in Society Kitch 20100315 3/3 EGR 445 of his hands by a sudden gust of wind. The Dirtco trench support was two feet to the right of where Maku was killed. Cal Trons had posted a sign “DANGER – OPEN TRENCH” and completely fenced off the work area when workers were not present. Maku’s wife sues Haverley for professional negligence and Cal Trons for negligence for Maku’s death. Cal Trons is dismissed from the case on a motion for summary judgment. Plaintiff’s expert witness, Sue Perior, testifies that Haverley should have conducted a new soils analysis and then recommended and designed a trench box appropriate for the soil. Haverley’s expert, Dee Nye, counters that a trench box was not required under California law and that under federal law a suitable system can mean that no system is actually required under the circumstances. Plaintiffs’ expert rebuts by testifying that the OSHA regulation presumes that some form of trench support is always required even if a specific type is not and that any soils engineer must consider the statute. Nye rebuts by saying that there was a trench support system chosen by the contractor and that the statute applies only to the contractor. The jury will receive the following California Bench Approved Jury Instruction (BAJI, 1986) from the judge regarding the standard of care: “In performing professional services for a client, a design engineer has the duty to have that degree of learning and skill ordinarily possessed by reputable design engineer in the same field of expertise practicing in the same or similar locality and under similar circumstances. It is the design engineer’s further duty to use the care and skill ordinarily used in like cases by reputable members of the soils engineering profession practicing in the same or similar locality under similar circumstances, and to use reasonable diligence and the soil engineer’s best judgment in the exercise of professional skill and in the application of learning, in an effort to accomplish the purpose for which the soil engineer was employed. “ The jury is further instructed that a failure to fulfill any legal duty is negligence if causation (both actual and legal) can be established between a breach of the legal duty and the injury claimed. Actual cause and legal (proximate) cause are as described in your notes
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