Utah’s Portable Classrooms Put Kids at Risk, Engineering Experts Say

Benjamin Wood | Salt Lake Tribune | January 24, 2018

Civil engineering and architectural groups urge tougher building standards on 100s of units, saying Utah lacks clear rules for anchoring modular classrooms to the ground, potentially putting thousands of students in danger.

Each school day, tens of thousands of Utah children make their way into stand-alone classrooms a stone’s throw from the main campus buildings where their peers study.

Commonly known as “portables,” these modular structures occasionally get moved around, or they remain in place for decades as a low-cost alternative to constructing newer and bigger schools to relieve overcrowding.

But what, beyond gravity, secures these buildings to the ground?

That question lacks a clear answer in Utah, with a decentralized network of boards for 132 school districts and 127 charter schools in charge of overseeing structural planning.

And while most of the hundreds of portable school buildings in use in Utah are similar in construction, minimum architectural and engineering requirements that cover them are loosely defined, beyond rules that seismic and soil conditions where they are located be studied.

“They’re not required to be on a permanent foundation,” said Natalie Grange, an assistant state superintendent for the Utah Board of Education. “When they’re installed, they are hooked to the ground in some way that satisfies safety and seismic requirements.”

On Wednesday, leaders of Utah civil and structural engineering groups issued a joint statement urging new, more stringent standards on modular buildings, including portable classrooms and offices.

(Trent Nelson | Tribune file photo) Students at recess at Butterfield Canyon Elementary in Herriman, which has 14 portable classrooms. On Wednesday, several Utah civil and architectural engineering groups called for more stringent building standards on the hundreds of portable classrooms in use across the state, saying current rules may be putting students at risk.
(Trent Nelson | Tribune file photo) Students at recess at Butterfield Canyon Elementary in Herriman, which has 14 portable classrooms. On Wednesday, several Utah civil and architectural engineering groups called for more stringent building standards on the hundreds of portable classrooms in use across the state, saying current rules may be putting students at risk.

When these modulars are used for more than 180 days — virtually all portable classrooms in Utah are used beyond that timeline — they should be considered “permanent” structures and subject to more rigorous structural codes, the professional groups said.

“Unanchored and/or unbraced structures intended for occupancy do not meet the provisions of the building code and present a risk to the health and safety of the occupants,” said the statement.

Issued Wednesday, the statement is signed by Anthony Schmid, president of the American Society of Civil Engineers Utah Section; Conrad Guymon, chairman of the Utah Section’s Structural Engineering Institute; and Troy Dye, president of the Structural Engineers Association of Utah.

Matt Roblez, a past president of the the American Society of Civil Engineers Utah Section, said he became concerned about the regulatory ambiguity surrounding construction of portables after inspecting a series of modular units intended for use at Utah schools.

Building codes did not appear to be enforced, Roblez said, but unlike some states, Utah does not have clearly defined requirements or guidance for prefabricated classrooms.

“At the minimum, Utah schools should adhere to the code more strictly by securing portable classrooms to the ground with use of a permanent footing and foundational system,” Roblez said. “Until this code can be properly enforced, Utah should write an adopted standard for schools to follow.”

Supply and demand

Salt Lake County’s five school districts operate a combined 604 portable classrooms, according to district spokespeople. The numbers range from a high of 250 portables in the fast-growing Jordan School District to six portables in the comparably small Murray City School District.

Utah’s two largest school districts, Alpine and Davis, operate 363 and 347 portable classrooms, respectively.

The state’s average student-to-teacher ratio is 21.8, according to the most recent data from the state Board of Education. By that math, portable classrooms in north-Utah County, Davis County and Salt Lake County house roughly 30,000 children.

Davis School District spokesman Chris Williams described the modular units as a necessary evil. School construction often lags behind swings in student population trends, and modular classrooms allow districts to adjust more quickly to those trends.

When the Davis district last sought voter approval for a bond, written materials on the measure noted that if all the district’s portables were stacked vertically, they would form the tallest building on Earth.

“We wish we could get away from them, but as you see from the numbers, 347 of them, we use them quite a bit,” Williams said. “We definitely make sure that it’s safe for people to occupy them.”

For its portables, Davis relies on a typical system of placing the buildings on rails and tying them to bars that extend 2 to 3 feet into the soil beneath. That setup, Williams said, allows portables to absorb wind or seismic activity without sustaining damage.

In case of a major disaster, classrooms anchored in this way might be shaken off their base rails, Williams said, but would likely remain otherwise intact.

“They’re made so that they can kind of sway back and forth,” he said. “If they fall, they’re going to fall a few feet.”

He said Davis School District’s portables are all on top of soil, without a foundation or hard surface beneath them.

“Our portables are placed on the grass or on dirt,” Williams said. “We do not lay a cement pad down or asphalt to go underneath them.”

Roblez said Davis School District’s approach — while typical for districts across the state — fall short of safety standards.

“Ground stakes, the tool that many modular units use for stability, do not meet the provisions of the current code for permanent foundations,” he said. “Per the code for a permanent structure, buildings require a footing and foundational system that is required to withstand gravity loads, wind and seismic events and be placed at frost depth.”

Quick fix for overcrowding

In Granite School District, all portables installed within the past six years have been placed on hard surfaces, spokesman Ben Horsley said.

“It’s more secure, clearly, having it on concrete or asphalt,” Horsley said. “You will find some [on soil], even within Granite District. That’s not to say they’re not safe and secure.”

Like portables in the Davis district, Granite’s classrooms are tied to pairs of stakes that extend into the ground. The district has also moved to using steel frames, instead of wood, over the past decade and bolts the portables’ base siding into the asphalt or concrete beneath them, adding an extra level of anchoring, according to Steve Hogan, the district’s director of planning and boundaries.

Hogan said the district chooses flat areas to place portables — to avoid issues such as rain erosion or shifting soil — and keeps the buildings as low to the ground as possible for accessibility and to lessen the distance a building would drop if it fell off its footings.

(Trent Nelson | The Salt Lake Tribune) The footing under a portable classroom at Stansbury Elementary in West Valley City, Friday December 8, 2017.
(Trent Nelson | The Salt Lake Tribune) The footing under a portable classroom at Stansbury Elementary in West Valley City, Friday December 8, 2017.

Because building codes for portable classrooms are not spelled out in detail, Horsley said the district looks to residential mobile homes as a standard for its modular buildings. He declined to comment on the design and anchoring of other districts’ portables, but noted that he’s unaware of any safety incident in Utah related to the structural integrity of modular buildings.

“We’ve tried to go above and beyond what those [mobile home] requirements are,” Horsley said. “I think we’re about as prepared as we can be and we’ll continue to upgrade. If we see other logical, reasonable ways that we can make these safe, we’re happy to look into that.”

Ross Wentworth, an architect with the Salt Lake City-based firm Naylor Wentworth Lund, has designed portable classrooms for several school districts, most recently Jordan School District.

Wentworth said most districts use a standard design plan for modular buildings, which is then tailored to specific conditions. And because portables are lightweight, detached from and typically newer than other district structures, Wentworth said they’re preferable to other buildings children could find themselves in during an earthquake.

“If I had to choose a place for a son or daughter to be, with respect to seismic activity, it would be in a relocatable,” he said.

(Trent Nelson | The Salt Lake Tribune) Portable classrooms at Stansbury Elementary in West Valley City, Friday December 8, 2017.
(Trent Nelson | The Salt Lake Tribune) Portable classrooms at Stansbury Elementary in West Valley City, Friday December 8, 2017.

Jenefer Youngfield, school construction and safety specialist for the state Board of Education, also referred to residential mobile-home design standards as a guide for the structural requirements of portable classrooms. Like mobile homes, she said, portables do not need be secured to a fixed foundation — unless the designing architect decides that site conditions require it.

Building plans for portable classrooms must approved by a certified examiner, she noted, and public concerns regarding safety can be submitted to the state Board of Education for review.

“The long and short of it,” Youngfield said, “is it’s up to the architect or engineer.”

‘Good, durable facilities’

Wentworth said if there is a regulatory gap in standards for portables, it rests with how they are connected to the ground. Like Williams and Horsley, the school architect speculated that a worst-case scenario could shake these classrooms loose of their footings, causing them to fall 1 or 2 feet to the ground.

But Wentworth emphasized that the structures remain safe when adequate attention goes into their design and installation. And while many spend their useful life at a single location, the buildings are built to be moved, he said, helping administrators respond to shifting enrollment.

“Our experience is that they’ve been pretty good, durable facilities,” Wentworth said. “They certainly solve a unique problem for the number of students we deal with in Utah.”

But Roblez said the lack of clear regulations and minimum standards is only adding to the potential for structural damage.

He urged that more be done to mitigate the risks, with sufficient foundations being the first line of defense against earthquakes and major weather events. Roblez also called for wider public awareness on the issue.

“Parents should ask questions of school facilities managers to understand how schools are adhering to the building code,” he said.

Horsley said Granite School District welcomes feedback from community groups on structural safety, acknowledging that modular classrooms are “the next best option” to a traditional schoolhouse.

“Our preference,” he said, “would obviously be a seismically sound, permanent facility.”

General Contractor’s Professional Malpractice / Negligence Claim Against Design Professional

David Adelstein | Florida Construction Legal Updates | November 23, 2017

A recent case supports a professional malpractice (negligence) claim by a general contractor against a design professional by reversing a trial court’s entry of summary judgment in favor of the design professional and finding a question of fact remained as to an architect’s role in the renovation of a public construction project.  By the appellate court finding that a question of fact remained, the appellate court was finding that it was a triable issue, which is exactly what the general contractor wanted in this case.  Getting this issue and the facts to the jury is the leverage the general contractor presumably wanted.

 

In Perez-Gurri Corp. v. Mcleod, 42 Fla. L. Weekly D2487c (Fla. 3d DCA 2017), a general contractor was hired by Miami to renovate a public project.  Miami’s prime consultant subcontracted with an architectural firm to prepare the design documents for the renovation.  The construction of the project was delayed and the general contractor filed suit against the architectural firm and other design professionals for professional negligence.  The general contractor’s theory was that the design professional’s professional negligence delayed construction thereby causing the general contractor to incur increased costs (such as extended general conditions).

 

Architectural Role or Services

The architect claimed it played no role in the project.  It is uncertain from the opinion whether the architect was claiming it literally played no role in the project or whether its position was that its role was so limited that a duty was not owed to the general contractor.  Either way, the court was focused on the role the architect played in the renovation of the project and held a question of fact remained as to the services or role the architect played in the construction of the project.   This is a pretty loose standard because it presumably allows the jury to determine (i) whether the architect rendered services or performed a role on the project and, if so, (ii) whether the role or services caused a delay in the construction of the project.  The reason this standard appears loose is because there isn’t any discussion as to the type of professional services or role that the architect must play for a duty to be extended to the general contractor.  (For there to be a professional negligence claim against the architect, the architect must be deemed to owe a duty to the general contractor with respect to the services or role it is performing.)

 

No-Damage-For-Delay Provision

 

This case also had a discussion regarding the no-damage-for-delay provision in the general contractor’s contract with the City.  The trial court held that the architect was protected by this provision.  (A no-damage-for-delay provision provides that a contractor’s exclusive remedy for delay is an extension of time, and it is not entitled to damages.) The appellate court reversed maintaining nothing in the no-damage-for-delay provision extended to the architect.  And, the contract further provided there are no third party beneficiaries to the contract.

 

Considerations

 

This recent opinion leads to a few important points.

 

First, as a general contractor, you ideally do not want to extend a no-damage-for-delay provision to anyone but the owner that hires you. From an owner’s perspective, if you want the no-damage-for-delay provision to benefit your consultants, you want to ensure that protection is clearly articulated in the no-damage-for-delay provision with a carve-out in the provision that references there are no third party beneficiaries.

 

Second, no-damage-for-delay provisions are not absolute, meaning there are exceptions to a no-damage-for-delay provision.  There was no discussion as to the applicability of those exceptions here.  Perhaps that is because the facts did not warrant the applicability of an exception or there was no need to go into such discussion since the no-damage-for-delay provision did not extend to the architect, or any design professional for that matter.  But, the applicability of an exception could also raise a question of fact.

 

Third, and mentioned above, there is no discussion as to the role or services the architect must perform for a duty to be extended to the general contractor.  Thus, even if the architect played a role or performed services, the case does not go into detail as to whether such role or services would even rise up to a level of the architect owing a duty to the general contractor.  This is important since the issue of duty is typically a question of law for the court to decide.

Can an Architect be Held Liable for Defects in Construction?

Sean M. Golden | Vandeventer Black LLP | November 7, 2017

It is common on commercial construction projects for the owner to hire the architect to perform services during construction, in addition to designing the project. Among other things, the architect’s construction phase services will typically consist of periodic observations and evaluations of the progress of the construction work. An architect may be charged with observing the work to determine whether or not the building is being constructed in accordance with the contract documents, including the drawings the architect has prepared.

When there are defects in the construction, an owner may attempt to hold the architect liable (usually in addition to the contractor) for said defects, even if there are no errors or omissions in the architect’s design or specifications. The theory behind such an assertion is typically that, even if the defect was caused by the contractor, the architect was charged with observing the work and should have called out the contractor’s defect and seen that it was corrected.

In such a situation, can the architect be held liable for defects in the contractor’s work? The answer – as is so often the case – depends on the architect’s contract with the owner. While many owner/architect agreements contain provisions requiring the architect to make periodic inspections of the work, it is typical for the agreements to contain language limiting the architect’s responsibility, such as the language used in the AIA Document B101-2017 Standard Form of Agreement Between Owner and Architect:

“The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures …, nor shall the Architect be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents.”

AIA B101-2017, at § 3.6.1.2.

An architect in this situation would likely argue that this provision is exculpatory in nature, i.e., that it relieves the architect from any liability for the contractor’s acts or omissions. The argument, according to the architect, is that the language “nor shall the Architect be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents” truly means that the architect cannot be responsible for the contractor’s failure to perform the work in accordance with the contract documents. Some courts have adopted this position, and have dismissed claims by owners suing architects for construction defects.

But the majority of courts have taken a more nuanced view of this often-used contract language. These courts have found that exculpatory language such as the quoted-language from the B101 doesn’t necessarily mean the architect is off the hook. The Supreme Court of Alabama explained this distinction in one such case:

While the agreement may have absolved the Architect of liability for any negligent acts or omissions of the contractor and subcontractors, it did not absolve the Architect of liability arising out of its own failure to inspect reasonably. Nor could the Architect close its eyes on the construction site and not engage in any inspection procedure, and then disclaim liability for construction defects that even the most perfunctory monitoring would have prevented, or fail to advise the owner of a known failure of the contractor to follow the plans and specifications.

Watson, Watson, Rutland/Architects, Inc. v. Montgomery Cty. Bd. of Educ., 559 So. 2d 168, 173 (Ala. 1990) (emphasis added). In other words, while the architect is not responsible for the contractor’s negligence, the architect is required to perform its construction observation services reasonably, as required under its contract. Further, when the architect actually observes deviations from the contract documents, it is required to report these to the owner.

There are several takeaways respecting such designer liability:

First, courts distinguish between full-time construction observation, and periodic evaluations of the work. Courts will hold the architect to a higher standard vis-à-vis construction defects in the latter situation. Architects should make sure that, unless they are truly being engaged to perform full-time observation, their contracts require observations of the work to occur only at periodic, reasonable intervals.

Second, the contract language matters. For example, an obligation to notify the owner of any defects in the work, whether or not observed by the architect, can be interpreted as something more akin to a guarantee of the contractor’s work; which is at odds with the exculpatory language, discussed above.

Lastly, performance matters. Whatever the contract language, all parties to the contract must perform as contracted, and if they do they have meet their obligations. Even the strongest exculpatory language will absolve an architect for failing to perform the construction administration services it agreed to perform. But performance as agreed shields that architect when performed as agreed.

Understanding the Details: Suing Architects and Engineers Can Get Technical

Steven M. Cvitanovic | Haight Brown & Bonesteel | October 27, 2017

Before suing an architect or engineer for professional negligence, a plaintiff must obtain a “certificate of merit” (“Certificate”) under Code of Civil Procedure section 411.35. Boiled down to the basics, the Certificate declares that the attorney consulted with and received an opinion from an expert that a reasonable and meritorious case exists against said design professional. The Certificate must be filed before serving the complaint on any defendant, but can be filed within 60 days under certain circumstances. This rule was recently analyzed against another long-standing rule in California, known as the “relation-back doctrine.” Under the relation-back doctrine, a court will deem a later-filed pleading, such as an amended complaint, to be deemed filed at the time of an earlier complaint.

In Curtis Engineering Corp. v. Superior Court of San Diego County, No. D072046, (Cal. Ct. App. 10/23/17), the Fourth Appellate Court considered the interplay between section 411.35 and the relation-back doctrine, holding that a Certificate filed more than 60 days after filing the original pleading does not relate back to the filing of the original pleading.

On May 5, 2014, Plaintiff George R. Sutherland (“Sutherland”), a crane operator, was injured when his crane tipped over. On May 3, 2016, Sutherland filed his complaint for negligence against Curtis Engineering Corporation (“Curtis”), a provider of engineering services. Sutherland’s original complaint did not include a Certificate. On December 1, 2016, Sutherland filed and served a first amended complaint which included a Certificate. The only change to the amended complaint was the addition of two paragraphs stating that: (1) a Certificate is attached as an exhibit and incorporated by reference; and (2) a claim was sent to the defendant Oregon State University.

Curtis demurred to the amended complaint, arguing, among other things, that Sutherland failed to file the required Certificate within the two-year statute of limitations time period. The trial court overruled the demurrer. Curtis filed a petition seeking an immediate stay of all proceedings and a peremptory writ of mandate directing the trial court to set aside and vacate its order overruling the demurrer and to enter a new order sustaining the demurrer.

On appeal, the Fourth Appellate District parsed the plain language of section 411.35 to determine whether Sutherland’s failure to timely file the Certificate mandated by section 411.35 required the demurrer to be sustained as a matter of law. In rejecting Sutherland’s argument that the relation-back doctrine should apply, the Court of Appeal determined that permitting the relation-back doctrine to apply in this situation would render meaningless the statutory requirement that the Certificate be filed on or before the date of service or within 60 days in some circumstances. The Court of Appeal found that permitting the relation-back doctrine to apply, would render section 411.35 meaningless, a result the Legislature likely did not intend.

This opinion is important for parties considering legal actions against design professionals because it makes clear that the relation-back doctrine does not permit an end-run around the requirements of section 411.35. The moral of the story is that claims covered by section 411.35 require utmost diligence at the front end and cannot be saved by a late-filed Certificate.

This document is intended to provide you with information about construction law related developments. The contents of this document are not intended to provide specific legal advice.  This communication may be considered advertising in some jurisdictions.

Contractors Exposed to Copyright Liability Where Owner Breaches Agreement with Architect

Katherine E. Kohm | The Dispute Resolver | October 16, 2016

A federal court in the case Eberhard Architects, LLC v. Bogart Architecture, Inc. et al., 314 F.R.D. 567 (N.D.Ohio 2016) recently held that contractors and subcontractors cannot, as a matter of law, avoid liability if an owner uses an architect’s plans and drawings without a license.

In Eberhard, the Architect entered into an AIA contract with the Owner to provide architectural services in connection with the design of a 12-bed hospital facility.  Per the contract the Architect granted the Owner a “nonexclusive license” to use its plans and drawings, the “instruments of service,” for the hospital project unless Owner failed to make payments.  In such instance, the contract stated that the license in favor of the Owner would be cancelled.

When the Owner failed to make payment to the Architect, the Architect issued cease and desist letters to all project participants – Owner, Contractor, Subcontractor – to stop using its instruments of service as they were protected by copyright law.  The Contractor and Subcontractors, who did not have a contractual relationship with the Architect and who did not have a basis in their contract with the Owner to stop work, continued to use the drawings and plans.  The Architect then filed a lawsuit against all project participants.  The Contractor and Subcontractors moved to dismiss. The federal court denied the motion.

The Contractor and Subcontractors first argued that case did not “arise” under the Copyright Act and was really a contract dispute concerning nonpayment of fees. The court disagreed holding that the complaint sounded in infringement by Contractor and Subcontractors and therefore arises under the Act. The court commented that it did not matter that the Defendants would raise an affirmative defense that they were not infringers in light of the nonexclusive license.

Then the court likewise discarded the arguments from the Contractor and Subcontractors that they did not exceed the scope of the license because the instruments of service were used on the exact project that the architect had intended.  According to the Contractor and Subcontractors, the Owner did not breach its agreement with the Architect (entitling the Architect to withdraw the license in full) because complete payment was not a condition precedent to the Owner-Architect Agreement.  The court pointed out that the Architect-Owner contract granted the license “upon execution” and “therefore, by granting the license before full payment was due, the parties clearly did not intend the full payment to be a condition precedent to the license itself.” And furthermore, by agreement of the parties, the license indeed “ceased to exist” upon the architect’s rightful termination of which non-payment was rightful reason. In sum, the Owner and Architect hadagreed that the license  would be extinguished.Accordingly, by proceeding to use the instruments of service without a license all project participants, including the Contractor and Subcontractors, were potentially liable under the Copyright Act.

Beyond this case–where, in light of the cease and desist letters, the Contractors and Subcontractors arguably were aware that the license was potentially expired–it is important to note that civil violations of the Copyright Act need not be willful or knowing. See generally R. Anthony Reese, Innocent Infringement in US Copyright Law: A History, 30 Colum. J.L. & Arts 133 (2007).  As such, contractors and subcontractors who use plans and drawings that are unlicensed, whether they know so or not, may expose themselves to liability.