Challenges and Opportunities for Innovation in the Public Works ...

in the birth of engineering as the profession we have today. 8 Thereafter, engineering
progressed rapidly as a profession applying mathematics and empirical science with the
impressive success. Everyone came to accept that engineers could, and should, be
able to calculate very accurately all that needed calculating. There is today a popular
conception that scientists can do almost anything they want to; most don't understand
that technology has always had frontiers, the "edge of the envelope", and that progress
in all ages requires exploring beyond the edge of the envelope.
B. The Legal Problems
Against the background of those observations, we turn to the principal
problem which deters innovation in the construction process: What happens if the
project doesn't work and is useless to the Owner; worse still, what happens its failure
maims or kills someone?
As a general proposition, whoever is damaged by such a failure now
almost invariably sues everybody, seeking recourse from any source possible.
Legal responsibility, and consequent fiscal liability for damages, under
such circumstances can arise from several sources: (a) Liability can be imposed or
assumed by contract; that is, a party may by contract undertake a duty to do or not do
something; and if he violates that duty, he becomes liable for damages caused by the
breach; 9 (b) The duty can be imposed by statute, that is the law requires people under
certain circumstances to do (or not do) things, and if they break them and the breach
8 Engineers on the continent had earlier begun coupling mathematical analysis with
empirical experimentation to solve engineering problems; but in England and
America, engineering was dominated until the middle of the 19th century by
"practical men" who regarded as useless theoreticians who dabbled in mathematics.
J.E. Gordon, Structures, Or Why Things Don't Fall Down, (1978), pp 61-65, 179-181.
9 This is to some extent an oversimplification. Many duties or responsibilities are
legally allocable, so that parties can allocate the duty, and with it the responsibility
for failure in the duty. For example, the law is not concerned with surveying
responsibility so any party may agree to provide the side survey, be responsible for
providing field surveying controls and staking out the work. But on the other hand,
in some states a property owner owes a non-delegable duty to avoid using his
property in a way which will damage his neighbors; in addition any party undertaking
inherently hazardous activity through an agent usually cannot delegate responsibility
for damages caused thereby. See, for example, D'Albor v. Tulane University. 274
So.2d 825, (La. App. 1973) writ ref. (Property owner absolutely liable for pile driving
damage to adjacent property. Notwithstanding contractor's assumption of responsibility;
owner did have indemnity right against the contractor if pile driving
negligent.)
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