42
Geotechnical News • September 2016
GEO-INTEREST
charge of the project. His firm was
retained in a very limited way to do a
basic soils test for $400. He identi-
fied the investigation as preliminary
only. He assumed that the site was
to be inspected by the supervising
engineer, and that the engineer would
have some knowledge about pre-
loading. The report said there were
“stockpiles of river sand deposited
on the building site’’, and that this
sand “constituted suitable preloading
material’’. Its only recommendation
on preloading was ‘‘use one foot of
this sand as surcharge for each 95 psf
of dead and live load anticipated on
this floor’’. It did not say there was a
preload in place, nor did it say how to
create or employ one. The report said
only that there was suitable mate-
rial on site and how much would be
needed.
I have concluded that the defendant
could not have been expected to
foresee the possibility that an engineer
in charge would refer to this report
as an instruction on preloading, or
that he would interpret it to mean that
a properly-designed preload was in
place, and not make any inspection.
The report says nothing about the
shape or position of the preload, or
how to know when to remove it. Nor
is there mention of the volume which
must be removed, as opposed to that to
be left in place as fill.
Should remarks made by Mr. Brown,
then, in his telephone conversa-
tion with Mr. Jones, have alerted
the defendant to the possibility that
the report, or Mr. Jones comments,
might be used by Mr. Brown as they
were?
Mr. Jones could not, I think, have
guessed, without being told, that the
report was being relied on as indicat-
ing that a properly-designed preload
was already in place. Nor do I think
he could reasonably be expected to
foresee that the Contractor intended
to put on the plan a note capable of
being interpreted as meaning that
monitoring of settlement was unnec-
essary—that merely leaving a preload
in place for eight weeks would be
sufficient to assure that the neces-
sary settlement had occurred. I say
that particularly because I accept that
Mr. Jones did mention the need to
monitor in his conversation.
I cannot therefore find that there was
negligence on the part of the defen-
dant up to this point, which, had the
defendant’s involvement then ceased,
could be said to have contributed to
the ultimate failure.
The pile-driving inspection
During July Mr. Doe retained a pile-
driving company to put in perimeter
piles in accordance with the contrac-
tor’s foundation plan, and asked the
defendant to send someone to super-
vise the operation.
Mr. Jones attended at the site for this
purpose July 12 and 13. He found the
sand on the site had been arranged so
as to make room for the pile driv-
ing crew to do that work around the
perimeter. Mr. Doe spoke to Mr. Jones
about the preload during the course
of the pile-driving, and he drew Mr.
Jones’ attention to the failure of the
building next door. He testified in
court that he asked Mr. Jones how the
preload seemed and that Mr. Jones
replied that it was ‘‘fine’’ and to leave
it on for eight weeks. In cross-exam-
ination Mr. Doe said that this answer
was given in a ‘‘off-hand’’ way, but
that he relied on it. He said he relied
also on the defendant’s report in com-
ing to the conclusion that preloading
was being properly done. He denied
that Mr. Jones mentioned the use of
settlement gauges during this brief
exchange.
On examination for discovery, Mr.
Doe had said he relied solely on what
he was told by Mr. Jones on this occa-
sion, so far as the preloading was con-
cerned, and not on anything contained
in the report. Mr. Doe also said on
discovery he had understood, until he
spoke to Mr. Jones on this occasion,
that he would have to keep the preload
in place for longer than eight weeks
if settlement had not ceased when the
eight weeks was up.
Mr.Jones’ evidence was that Mr. Doe
pointed at this meeting to the sand and
asked what Mr. Jones thought of the
preload and that he answered that it
seemed high enough. He said he asked
Mr. Doe how long it had been on and
Mr. Doe indicated about three months
and asked if that was long enough.
He said he replied that it might be but
that one would have to use settlement
gauges to be sure. He said Mr. Doe
asked if that was really necessary
and Mr. Jones replied that Mr. Smith
always used them.
I accept Mr. Jones’ evidence as a
reasonably accurate account of the
exchange which took place between
them that day.
I cannot find that this casual conver-
sation should have caused Mr. Jones
to realize he was being relied on to
warn the plaintiff of any inadequacy
there might be in the preloading
procedure. His firm had not, of course,
been retained for that purpose and his
visit had nothing to do with it. The
approval which he expressed in an off-
hand way could only have related to
the quantity of sand. It could not have
related to the configuration—which
had in any event been disturbed for the
pile-driving- nor to whether settle-
ment had ceased. I accept Mr. Jones’
evidence that he told Mr. Doe that
settlement must be monitored in order
to know whether it had ceased.
Mr. Doe’s prior understanding,
as expressed on examination for
discovery, that hewould have to leave
the preload in place if settlement was
still taking place when the eight-week
period mentioned on the foundation
drawings expired, was a manifestly
reasonable onewhich could not rea-
sonably have been displaced by this
conversation with Mr. Jones.
I.cannot say that Mr. Jones was neg-
ligent in the remarks which he made
to Mr. Doe on this occasion.
Despite his understanding that settle-
ment had to be checked, Mr. Doe
