Catastrophic Building Failures: Formulating Initial Strategy and Organization: No One Expects a Building to Collapse, but When That Happens, Counsel Representing Contractors or Design Professionals Must Have Plans

By Fox, Reeder R.; Strawbridge, Steven J. | Defense Counsel Journal, October 2002 | Go to article overview

Catastrophic Building Failures: Formulating Initial Strategy and Organization: No One Expects a Building to Collapse, but When That Happens, Counsel Representing Contractors or Design Professionals Must Have Plans


Fox, Reeder R., Strawbridge, Steven J., Defense Counsel Journal


A CATASTROPHIC building failure necessitates immediate action. For counsel representing contractors and design professionals, there are number of issues to be addressed promptly. Because these cases almost invariably lead to complex litigation, counsel's initial actions can have a significant bearing concerning the outcome of future litigation. This requires thinking as a consultant, organizer and advisor, as well as a litigator. Because catastrophic building failures always involve serious property loss and often personal injuries, the preservation and collection of evidence requires immediate action, including retention of experts and consultants.

NOTIFICATION ISSUES

The initial notification of a catastrophic building failure can come in many ways. The first call often comes from the client contractor, design professional or perhaps even the surety.

One of the first calls counsel should make is to the client's insurance carrier. Depending on the type of building failure, some insurers have emergency response teams that may come to the accident location. Some may have existing business relationships with consulting engineers and experts in various locations, where prompt notification can lead to the carrier's dispatch of one of its local or regional experts to begin an investigation. Insurance policies usually require prompt notification to the carrier, particularly in instances where the scene of the accident can change dramatically as rescue and remediation efforts are initiated by the appropriate authorities.

CRISIS MANAGEMENT TEAM

The creation of a crisis management team is critical. Counsel will need to be briefed by the client concerning the nature of the design, the status of construction and the actual conditions at the time of the collapse. It is important to develop an initial strategy on responses to questions and accounts from the media. Catastrophic building failures always generate significant media activity. When there are numerous personal injuries and fatalities, that attention intensifies. The crisis management team also must consider cooperation with the appropriate governmental authorities.

One of the most important functions of the crisis management team is to gather as much hard evidence as possible. When there are personal injuries, the scene of the collapse can be subject to many people altering and moving potential evidence in efforts to stabilize the physical site, provide medical assistance to injured people and recover bodies. Because the condition of the site is often quickly changing, efforts should be made to preserve as much evidence as possible through photographs and videotape. Some sites can be subject to cross-sectioning where material that is removed can be taken offsite and stored in an organized and orderly fashion.

WORK PRODUCT DOCTRINE AND ATTORNEY-CLIENT PRIVILEGE

Counsel must be involved in immediate consultation concerning the selection of experts, as this can be a significant issue regarding evidentiary issues that may arise in future litigation. To the extent that counsel is involved in the initial stages of investigation of a catastrophic building collapse and provides advice concerning the investigation and retention of experts, the client may be protected to various degrees by the attorney work product doctrine and the attorney-client privilege.

The roots of-the work product doctrine are in the realities of litigation in an adversary system, one of which is' "that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials and preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney." (1) However, documents that do not refer to work product prepared by an attorney or other agent of a party to aid in forthcoming litigation, and which are generated in the ordinary course of business, are discoverable. …

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