Conditions Changed? No Problem

About 40% of personal injury consultations involve hazards and defects that no longer exist. Another 45% of the personal injury consultations are regarding conditions that are either transient or have changed, even though the hazard or defect has not been corrected. In only 15% of the personal injury consultations are the conditions completely unchanged.

For some personal injury consultations, access to the premises is denied without multiple court orders, is provided with restricted access to hinder site examination, or the defendant delays site access to the point where a report needs to be issued without a site examination.

Many personal injury consultations must rely (at least in part) on photographic images. As long as the photographic images fairly and accurately represent the site as it existed at the time of the incident, a Professional Engineer's report detailing hazards and code violations can be prepared.

Professional Fees

You will be quoted a fixed fee based on the information provided. There is no extra fee for answering your questions on the phone. If you request an increase in the scope of the consultation, additional fees are always discussed before any Engineering work is performed. You know the expected fee for the professional services when work begins.

Professional Engineers are prohibited from working on a contingency basis. Professional Engineers are prohibited from engaging in fee-splitting, meaning no referral fees are ever paid.

Foreseeable Incidents and Reasonable Care

The cause of injury is often the defendant's failure to use reasonable care in the maintenance or repair of a building. Engineers need to look at the site conditions and determine if the owners created a defect or hazard by failing to use reasonable care. It is also essential to determine if it is foreseeable that the condition could cause an injury.

Trivial Defects

De minimis means too trivial or unimportant to be considered. A de minimis defect is a defect that a defendant argues is too small to be considered as the cause of the accident and injury.

Who decides if a defect is de minimis? Is it decided by Attorneys, the law, or the Engineer? Engineers need to consider whether a defect is trivial in determining the proximate cause or substantial cause of the incident and subsequent injury. It a Professional Engineer determines that a defect is the proximate cause of an incident, then the defect is not trivial.

Engineer Experts or Hired Guns?

Some Professional Engineers are "hired guns". These expert witnesses provide reports in favor of their clients regardless of the facts, the laws of physics, or reality. It hurts to exaggerate or embellish findings. If there is no defect, that is what the Professional Engineer must tell you. Some Attorneys will never use my services because I do not embellish the reports in favor of their clients.

Embellishing a report or relying on code references that are not applicable may work if an insurance company settles based on an inaccurate report. In other cases, the expert's statements in the inaccurate report cannot withstand summary judgment or withstand cross-examination in a Court of Law. Harold Krongelb, P.E., provides a professional opinion based on the reality that should hold up to summary judgment or under cross-examination.

Words are Important

It is essential to know what to say, what not to say, and how to phrase findings. Judges typically do not accept professional opinions from engineers on medical, psychological, legal, or financial matters. Yet some Engineers routinely provide these opinions in their reports. These non-engineering opinions often do not hold up under summary judgment.

It is essential not to make statements that might be misinterpreted as beyond a Professional Engineer's expertise. Even an otherwise well-written report can be thrown out in summary judgment if an otherwise accurate statement is misinterpreted.

Everything in the reports is designed to withstand summary judgment and withstand cross-examination during trial. This has been tested during many court trials and summary judgment decisions.

"Old School" Engineers

After World War II, Engineering moved from war-related work to developing products for consumers and of national interest (such as the space program). There were few universally accepted standards other than building codes and mechanical standards, such as standard screw and wire sizes. Many Engineers who graduated before the mid-1970s created their own standards, often changing these standards from project to project.

Although organizations such as the American National Standards Institute (ANSI) began developing standards after World War I, many of these standards did not acquire the force of law or become well-accepted practices until the 1960s. In addition, organizations such as the Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) set and enforced standards. Organizations such as ANSI and the Consumer Product Safety Commission (CPSC) set standards that may not have the force of law, but are universally followed.

Some "Old School" Engineers retired from full-time employment to become consulting Engineers. These "Old School" Engineers approached accident investigations as if they had spent their whole lives doing so. The result was reports that reflected the "Old School" Engineer's standards or the Engineer's interpretation of Building Codes, without regard for how the Department of Buildings interprets codes or for good and accepted practices.

An example of the difference between old self-created standards and newer standards can be seen in the change in automobile safety in the last 50 years. In the late 1950s, automobile manufacturers advertised their cars' safety. The safety standards were set by automobile manufacturers. In the late 1950s, General Motors stated that its cars had a "safety X-frame" in advertising.

The Insurance Institute for Highway Safety released a 2009 video showing a frontal offset collision between a 1959 Chevrolet Impala and a 2009 Chevrolet Malibu. Analysis after the collision showed that the driver of the 1959 Impala would have died instantly, and the driver of the 2009 Chevrolet Malibu might have sustained a knee injury. Video of a 1959 and a 2009 Chevrolet Impala Collision

This video illustrates the difference between self-created standards based on a few theories and well-developed, well-tested, and well-accepted standards. By the self-created standards of 1959, the Impala was "safe". By today's standards, the 1959 Impala offers little passenger protection.

When choosing a Professional Engineer, be careful of Engineers who define their own standards. While they may sound good, their testimony will hold up no better under cross-examination based on today's standards than the 1959 Chevrolet Impala held up against the 2009 Chevrolet Malibu.

Accident or Incident

Accident has no clear meaning. An accident could be an injury caused by a property owner's negligence. An accident could be the fault of the injured party. A contractor's negligence could cause an accident.

A Professional Engineer evaluates incidents. Someone is injured, which is the incident. It is only after the incident is evaluated that the cause of the incident and negligence can be established.

When an incident is evaluated, there should be no preconceived notion of who is responsible, why they are responsible, or how the defect or hazard was created. An incident should be evaluated methodically and unbiasedly, including the application of well-established scientific, engineering, and mathematical principles. Only after all the facts related to the incident are determined can negligence and blame be determined. It is noteworthy that this approach often finds a much more significant defect and yields a much better case for your client.

Sidewalks, Stairways, Paths, and Means of Egress

A trip and fall on a public sidewalk is different than a trip and fall on a stairway, ramp, or other required means of egress. The standards and applicable codes are often different. Sidewalks by their nature have irregularities, and pedestrians need to exercise reasonable care. A concrete path that is part of a required means of egress may be held to a higher standard than a sidewalk along a street. A Professional Engineer needs to determine which codes and standards are applicable.

Building Codes and Engineering Standards

It is important to determine which codes, regulations, and standards are applicable to a specific incident. When a building is constructed, it is built in accordance with the codes, regulations, and standards in force at the time of construction. Harold Krongelb PE has an extensive searchable library of historical codes is available and includes:

1877, 1892, 1899, 1901, 1906, 1916, 1938, 1968, 2008, 2014, and 2022 City of New York Building Code

1951, 1954, 1959, 1964, 1972, 1978, 1984, 2004, 2010, 2015, and 2020 State of New York Building Code (including amendments and construction manuals)

1938 FHA Construction Standards
1907, 1909, 1915, 1922, and 1934 Fire Underwriters Model Code
State of New York Multiple Dwelling Law
State of New York Tenement Law
City of New York sidewalk regulations
Electrical Codes

In addition, numerous standards have been published by various organizations. These standards can help, but a Professional Engineer must be cautious when applying them. For example, a national standard for measuring surface slip resistance was withdrawn when it became apparent that it was nothing more than a sales promotion for one manufacturer's testing device.

Most important is knowing which codes and standards apply to which locations. If irrelevant codes are cited, the Professional Engineer's report is of little use.

Codes, regulations, and standards change over time and modifications are made to existing buildings and sites. It is crucial to examine the building's historical record to determine which codes, regulations, and standards apply.

The term grandfathered is often applied to existing construction. Saying a building is grandfathered is usually inaccurate. Grandfathered only applies to original unaltered construction. Grandfathering requires that no changes were made without required permits and approvals. Once a building is changed, newer building codes, standards, and municipal regulations become applicable. For example, making a change to a building's interior might require that exterior steps be brought up to modern codes. Just because a building complied with the applicable codes at the time it was constructed does not mean that hazardous defects are permitted.

Even if the building or site is unaltered, it may not have complied with the codes, standards, and regulations in effect at the time the building was constructed. Many older codes, regulations, and standards are not as clearly written as their more modern counterparts.

The Engineer needs to consider both the wording and the correct application of the code, regulation, and standard. In addition, the injury may have been caused by faulty maintenance, which may be a violation of current codes.

Just because a building complied with the applicable codes at the time it was constructed does not mean hazardous defects are permitted. Failing to maintain a building or site in a safe condition is never grandfathered.

Proximate or Substantial Cause

Proximate cause is often defined as the immediate or closest cause. Substantial cause can be described as a significant factor that contributes significantly to an incident. When examining a site or building where a personal injury occurred, it is crucial to determine the proximate or substantial cause of the incident. Some Engineers cite irrelevant deficiencies as the cause of an incident. For example, if a client falls at the top of a set of steps, hazards near the bottom of the steps are irrelevant.

Many experts look to find any defect or hazard and never determine if it is the proximate or substantial cause of the accident. It is essential that only relevant defects, hazards, and codes are included in reports. Engineering reports that include irrelevant information may look good at first, but they can be defeated on summary judgment.

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