Negotiate a settlement to the dispute in Case VI from Chen 1988.

Assumptions:

• The case is in mediation.
• The state of Colorado spent $850,000 to correct surface drainage problems around the facility and to repair interior walls and floors damages by swelling soils.
• The contractor has already made a settlement with the state of Colorado. No details of that settlement are known.

Scenario:

As the mediator- Facilitate settlement discussions by the parties and to try to resolve the case before it goes to trial. Be neutral, fair, and objective. The mediator does not decide outcomes, but encourages the parties to find acceptable outcomes through a completely voluntary process. The mediator can speak with the parties gathered all together or in separate communications, conveying information or offers back and forth. Help the parties identify strengths and weaknesses in their facts or positions and to identify choices or alternatives and help create solutions.

Prepare for negotiation. List facts for and against each of the three parties in the mediation.

1. Owner
2. Architect
3. GeotechnicalEngineer

AN ANATOMY OF A LAWSUIT GENERAL PROCEDURE FOR GEOTECHNICAL INVESTIGATION FOUNDATIONS ON The procedures most geotechnical engineers follow for the investigation of a building site are as follows: EXPANSIVE For a large tract of land, where there is a choice of building location, a preliminary soil investigation usually is conducted to provide recommendations as to the most favorable location for the proposed building SOILS from a geotechnical standpoint. When the footprint for the building is established, a final geotechnical report is prepared. The report recommends the foundation type, slab construction, drainage precautions and others. The structural engineer uses the report to design the foundation system, and the architect uses the report for site preparation and landscaping. F.H. CHEN Sometimes the structural engineer and/or the architect asks the Chen & Associates, 96 South Zuni, Denver, CO 80223, U.S.A. geotechnical engineer to review the final plans and specifications. During construction, the owner, or the architect who acts as the representative of the owner, asks the geotechnical engineer to examine the drilling of the pier holes, the placement of fill or the installation of the drain system. The scope of the service is specified in the specifications. ABSTRACT FROM PRELIMINARY SOIL REPORT The project is the Colorado State Veterans Nursing Home located at . . . Florence, Colorado. A preliminary geotechnical report was prepared in 1973 for the purpose of determining the most desirable location for construction. - . . On site selection The northwestern portion of the site is located in a broad valley where the bedrock is generally. deep," and the upper soils do not possess swell potential. This area (north of the trail and west of contour line 5300) in our opinion appears to be the most desirable location for construction as shown on Figure VI-1. The figure also shows the final selected location of ELSEVIER the building. Amsterdam - Oxford - New York - Tokyo 1988426 FOUNDATIONS ON EXPANSIVE SOILS AN ANATOMY OF A LAWSUIT 427 On foundation system Where the bedrock is relatively deep and the upper soils do not possess swell potential, spread footing foundations can be used. Where the bedrock is high, such as the area south of the trail, it is desirable to use ZZ SCALE 1'=300' APPROXIMATE drilled pier foundation to support the structure. On floor slab OPUMPHOUSE Where the upper soils do not possess swelling potential, slab-on-ground construction can be successfully used. However, where bedrock is shallow, OOIL WELL interior floor slabs are placed directly on bedrock. There is a strong possibility that heaving soils pose problem to slab-on-ground STATE VETERANS HOME -SELECTED SITE FOR construction. Special consideration should be given to slab-on-ground -OPEN COURT YARD construction to prevent heaving soils from affecting the stability of the -DIRT ROAD structure. WATER TANKO ABSTRACT FROM GEOTECHNICAL REPORT Figure VI-1. Proposed and final location of State Veterans Home. On foundation system Considering the subsoil conditions and proposed construction, the most PARKING IL safe and desirable type foundation would be straight-shaft piers drilled into the claystone bedrock. The following design and construction details should be observed: (1) Piers should be designed for a maximum end pressure of 30,000 psf and a skin friction of 3,000 psf for the portion of pier in the bedrock. (2) Piers should also be designed for a minimum dead-load pressure -CONTOUR LINE 5300 15,000 psf to resist the potential expansion of the upper soils. (3) Piers should penetrate a minimum of four feet into bedrock and have F TRAIL minimum total length of twelve feet. NORTHWEST CORNER, (4) Piers should be reinforced their full length with at least two $5 bars SECTION 28 to resist uplift. (5) A minimum four-inch void should be provided beneath the grade beam between the piers to prevent uplift on the bottom of the grade beam and to concentrate the load on the piers. SAN ISRAEL AVENUE (6) All pier holes should be thoroughly cleaned before placing concrete.428 FOUNDATIONS ON EXPANSIVE SOILS AN ANATOMY OF A LAWSUIT 429 On floor slab (4) Roof downspouts and drains should discharge well beyond the limits of all backfill. Floor slabs placed on the claystone-sandstone bedrock have a risk of (5) Landscaping, which requires excessive watering and lawn sprinkler heads heaving and cracking if the underlying subsoils become wetted. Considering should be located at least ten feet from the foundation walls of the the moderate-to high expansive potential of the claystone bedrock, it is building. reasonable to consider a structural floor system with an air space beneath Although no ground water was encountered in our test holes at the time it. Providing the owner is aware of the risk and slab-on-ground floors are of drilling, it is possible that a perched water table condition could occur required, the following details should be observed: from time to time due to heavy precipitation or local irrigation. Where the (1) Floor slabs should be separated from all bearing walls and columns with lower floor is below the surface of bedrock, it is possible that this a positive expansion joint. trapped perched water table could seep into the lower floors causing wet (2) Interior partitions resting on the floor slabs should be provided with conditions. Where the lower floor is below the surface of bedrock, we a slip joint, preferably at the bottom, so that in the event the floor recommend that an underdrain around the periphery of the building be slabs move this movement is not transmitted to the upper structure. installed. This detail is also important for wallboards and door frames. (3) Floor slabs should be. provided with control joints to minimize damage DISTRESS AND PUBLICITY due to shrinkage cracking and they should be reinforced. (4) A four-inch gravel layer should be placed beneath the floor slabs. About two years after the completion of the building, it was found that (5) It has been our experience that the risk of floor slab movement can be the floor slab ' had heaved. Upon examination, it was found that a minimized by removing at least three feet of expansive soil and slab-bearing partition wall had not been provided with the necessary slip replacing it with a compacted nonexpansive fill. This should be a joints as designed. As the result, not only did the partition wall show granular soil and compacted to at least 90% standard Proctor density at cracks, but the walls also pushed against the ceiling and resulted in heavy optimum moisture content. distortion. The above precautions do not prevent the movement of floor slabs in the The initial design team advised the administrator to regulate their event the floor slabs become wetted; however, they minimize the damage if watering practice, especially in the open courtyard area, and was ignored. such movement occurs. In the meantime, a great deal of publicity was, generated, blaming the design engineers and architect for the problem. One paper had the heading, On drainage "Chen & Associates charged in negligent construction of Veterans' Home." The following -drainage precautions should be observed during SUMMONS construction and maintained at all times after the building has been completed: A summons was delivered to the geotechnical engineer in August 1979. (1) Excessive wetting or drying of the foundation excavation should be avoided during construction. On floor slab (2) Backfill around the building should be moistened and compacted to at least 85% standard Proctor density. Defendant Chen negligently and improperly recommended slab-on-ground (3) The ground surface surrounding the exterior of the building should be construction with knowledge of the possibility or probability that heaving sloped to drain away from the building in all directions. We recommend soil would pose a problem. a minimum slope of six inches in the first ten feet.The plaintiff, relying on the conclusions and recommendations of Chen "The above precautions will not prevent the movement of floor slabs in for slab-on-ground construction, authorized construction of the Veteran's the event the floor slabs become wetted; however, they will minimize Nursing Home utilizing slab-on-ground type construction. the damage if such movement occurs." As a direct and proximate result of the improper recommendations of It is this defendant's contention that the report submitted by the Chen to use slab-on-ground construction when the site was not fit for this defendant shows on its face that it did not recommend slab-on-ground kind of construction, the plaintiff has been damaged in the manner and in construction, and, to the contrary, discussed slab-on-ground construction as the amounts set forth below. an alternative with respect to which special precautions and special construction steps had to be observed in order to minimize damage which On pier foundation would have occurred from slab movement if the expansive soil had become wet. It is further this defendant's position that the report made a full " . .. . Defendant Chen negligently and improperly inspected and supervised the disclosure of the dangers of utilizing slab-on-ground construction and this pouring of the concrete piers which resulted in the concrete piers, which defendant's statements and recommendations contained in the said reports, as are the foundation and support for the Veteran's Nursing Home, not a matter of law, do not amount to negligence. conforming to specifications in that they are larger in diameter than the affiant has since learned that after issuance of the Chen and specified. Associates, Inc., report of July 5, 1974 the architect as well as members of It was the duty of defendant Chen to notify the contractor of any the State Department of Administration and other executive persons of the errors in the pouring of the concrete piers, including errors in the size of state of Colorado interested in the project, applied to the appropriate said piers. Notwithstanding said duty, defendant Chen improperly failed to committees of the legislature for additional funding authorization in order notify the contractor of the piers being larger than specified. to permit the construction of the facility with a structural floor system as recommended in the report of July 5, 1974, but were not successful. Neither On inspection the affiant nor the defendant Chen and Associates, Inc., were ever consulted or contacted with respect to those efforts. Defendant Chen improperly failed to notify the contractor that several of the piers had a mushroom or bell formation at the top so that the surface On pier size area at the top of the pier was larger than the remainder of the pier and larger than called for by the specifications. With respect to the inspection and the supervision function which defendant, Chen & Associates, did undertake, the drilling of the holes for RESPONSE the piers included ascertaining that where an 8" pier was called for in the specifications the hole was 8" in diameter and that all holes were to the On floor slabs proper depth. A letter attached from the structural engineer to the architect stated, Defendant clearly recommended a structural floor system with an air "I received a call from Chen & Associates advising that the contractor space beneath it rather than slab-on-ground construction. Said report also was drilling 10" round piers in lieu of 8" round shown on the relates an understanding that the construction will probably b drawings. As we discussed, it was my understanding that the contractor slab-on-ground and states as follows: had asked for a substitution to use 10" round piers. Upon checking, we "Providing the owner is aware of the risk and slab-on ground floors are found that the 10" pier could be substituted for the piers, providing required, we suggest the following details be observed:" 1'-0" additional minimum penetration into bedrock is provided." And then there follows five specific recommendations, concluding with the statement that:FOUNDATION SOULS AN ANATOMY OF A LAWSUIT 433 The above letter clearly shows that there was a change in the poured piers and consequently no duty to ascertain whether or not mushroomn specifications and the contractor was permitted to substitute 10" diameter or bell shaped formations appeared thereon after they were poured. piers for the 8" diameter piers. The structural engineer on the project was charged with the duty of EXPERT TESTIMONY approving or disapproving of such changes. That letter together with the pier inspection reports of the defendant, Chen & Associates, show clearly Throughout the lawsuit, no less than 30 witnesses were called. Among that all pier holes drilled and approved were approved in accordance with them were five structural engineers, four geotechnical engineers and two the project specifications as modified and approved by the structural architects. Some of the abstract of the testimony is given as follows: engineer. In addition, it is clearly shown by Mr. Chen's testimony that the increase in the size of the piers which was approved by the structural Architect testimony (plaintiff) engineer was still within the minimum dead-load pressure parameter of 15,000 pounds per square foot recommended by the defendant, Chen & Associates, Inc. The plaintiff engaged an architect from out of state who had no experience on actual construction and nothing on expansive soils. He made On mushroom the following comments on the geotechnical involvement, The plaintiff alleges that during construction the defendant improperly For the preliminary report: failed to notify the contractor that several of the piers had a mushroom a. In our opinion, the Engineer's report is confusing, erratic and bell formation at the top so that the surface area at the top of the pier contradictory. It is difficult to understand how a site can be was larger than the remainder of the pier and larger than called for by described in the first instance as having no unusual subsoil conditions specifications. and in the second instance described as having erratic bedrock with Excerpts from the construction documents which set forth the high swell potential and upper soils that will settle excessively upon responsibilities of the soils engineer on the project are as follows: wetting. The owner shall employ a soils engineer to inspect the bearing b- material. If the bearing stratum at design depth is not suitable, the We find the slab-on-ground recommendation very risky on the site. The recommendation is made for situations where soils, do not swell. excavation shall be drilled deeper as directed by the soils engineer or However, according to the report, lower portions of bedrock possess the architect. Holes shall be inspected by the architect immediately prior to placing swell potential and upper soils consolidation potential. There are Notify architect at least forty eight hours before cautions against slab-on-ground construction making the recommendation of concrete. even more confusing. beginning the drilling operation. C. The recommendation for spread footings, even if on natural soils, and The above documents clearly show that defendant, Chen & Associates, in consideration of the possibility of consolidating soils, in our Inc., undertook to perform only those functions required by the construction opinion, is improper." documents to be performed by the soils engineer. The only functions relating to the piers performed by the soils engineer pursuant to the For the final report: construction documents were the inspection and supervision of the drilling a. The engineer's statement of the holes for the piers, which did not include the subsequent separate of Proposed Construction. indicates the . Architect, presumably based on the first soils report, has designed the operation of pouring the piers themselves or placing steel reinforcement in building with slab-on-ground. the holes prior to the pouring of the concrete. Thus, defendant, Chen & b. This report generally repeats the caution of 'slab-on-ground Associates, Inc., had no duties whatsoever with respect to the inspection of construction, and includes a recommendation for structural floor slabsGeologist testimony (plaintiff) with air space under. The report goes on, however, to approve slab-on-ground construction suggesting a risk and recommending a design The state further sought comment from the state geologist and their to minimize damage. comments on the geotechnical engineer are as follows: C. The above situations certainly are confusing and contradictory enough; 1 . The owner accepted a degree of risk when the site with its expansive however, to add to the problem the recommendations on roof drains are soils was selected, in light of known problems with other state short sighted and dangerous if the previous caution given by the buildings in other areas on expansive soils. Engineer to maintain excavations in a state of equilibrium, i.e. , not 2 . The soils engineer identified the expansive characteristics of the allowing wetting or drying of foundations excavations, is valid. Roof soils, recommended ways to cope with these soils and how to keep them drainage, if the situation could be critical, should be piped off the dry but I feel did not emphasize strongly enough the dire consequence site without the possibility of wetting soils. of poor roof and site drainage. d. With the possibility of erratic soil conditions, including moderate-to- 3 . The design of the structure with its open courtyards, lack of positive high swell potential for claystone bedrock, drilled pier foundations interior roof drainage, lack of positive outer lawn drainage is highly appear to be a risky recommendation. In our opinion, the drilled pier at fault as to the long-term performance of the foundation and slab is vulnerable from skin friction and lifting once swelling takes place system. The fact that these problems were not identified at the time due to wetting. In addition, if soils absorb moisture, said moisture of construction indicates that there was no responsible individual on has access to highest swell area due to drilled piers. the job, who knew the consequence of these design and construction The allegation of the state against the geotechnical engineers appeared deficiencies. to be based entirely on the above testimony. As stated by a structural 4. A structural floor slab system was the first recommendation with . no engineer , stated risk. Slab-on ground floors could be used if certain details "In general, this report strikes me as a 'quick and dirty' report by a were observed but being clearly stated that such floors could heave and person with little or no experience or understanding of expansive soil crack if the underlying subsoils became wet. In other words, even if foundation problems. This needs to be brought out. The only purpose I the stated precautions were observed, if the soils under the slab can see for the report was to get a lawsuit started." became wet, the floor slab would move. He states t that the soils , reports are "confusing, erratic and The plaintiff saw that the state geologist did not find any fault on contradictory." Be probably thinks it is erratic and contradictory because the geotechnical engineer, made a strong point that, "The geotechnical the report was for two entirely different building sites which he apparently engineer did not emphasize strongly enough the dire consequence of poor roof did not take the time to discover. and site drainage." This later became the central target of the state He further states that drilled pier foundations appear to be a risky against the defendant. recommendation. This is probably the best statement in the whole report to discredit his opinion. Drilled pier foundations are used very extensively Structural engineer testimony (defendant) throughout Colorado and, in most cases, they are used most specifically to minimize the effect of expansive soil. For all intents and purposes, there A structural engineer who has vast experience on structural damage on . is no other practical foundation system that will accomplish as much to expansive soil reported as follows: prevent problems with expansive soil. He obviously does not understand the "It is also my opinion the recommendations in the Chen report are mechanisms of expansive soil and what proper engineering design does to relatively standard for situations of this nature and are in accord with minimize these effects. normal engineering practice. "Some of the prior investigative reports indicated the possibility of grade beam and foundation movement. However, at the time of my inspectionthere was little obvious evidence of foundation movement, although no actual 1. The change from eight-inch diameter piers to ten-inch diameter piers measurements were made. The building damage consisted primarily of cracks was also checked, and we found that this met the design criteria as and other distress that had occurred in the drywall partitions, doorways, approved by the original design engineer. ceilings and floors. It appeared most and possibly all of this damage was 2. The mushrooming (flare) at the top of the caissons is not termed as attributable to movement of the concrete floor slab which in turn was critical. It is the opinion of an independent geotechnical engineer causing movement of the partitions built on it. that the additional anchorage into the claystone bedrock more than Considering the highly expansive nature of the supporting soil, the offsets the uplift on the additional small area created by the mushroom extremely poor surface drainage on all sides of the building, the excessive effect. irrigation that has been reported, and the potential for really severe problems, the building was in relatively good condition. Most of the Geotechnical expert testimony (defendant) cracking should be considered minor and no serious structural problems were noted. The state of Colorado finally sought testimony from a top geotechnical "Slab-on-ground construction is not 'negligent or improper' engineer in the field of expansive soil from Washington, D.C. | The state recommendation. Buildings are designed and constructed on expansive soils expected that this witness could discredit the geotechnical engineer's using slab-on-ground construction constantly throughout Colorado. . Very few report. To their surprise, the expert fully agreed with Chen & Associates' building owners are willing to spend the substantial extra money necessary report and actually blamed the state for over-irrigation. to eliminate slab-on-ground construction. "The increase in drilled pier (or caisson) diameter was a properly approved design change that occurred during construction." This report was not considered seriously by the state. They claim that local engineers tend to protect fellow engineers. Remainder of article Academician testimony (plaintiff) cut for academic A college professor from Chicago provided a geotechnical report. He first performed an analysis on the clay mineral content of the claystone Purposes shale and concluded: 1. The clay-shale foundation rock has a potential to and did swell. 2. The flare and the enlarged pier diameter allow more force from the heaving shale to be transferred to the pier than would original design. 3. The crack at the botton shows that the pier did not provide sufficient anchorage to counteract the forces created by the swelling. shale." It is interesting to note that the crack developed on the pier can only . indicate that there is sufficient anchorage of the pier. Structural engineer testimony (defendant) In direct response to the academician's report, the structural engineer stated