Shall vs. Should (Clarification) 2

[NJ1]

thread184-274291

I started many months ago the above thread looking for some real clarification in reference to should vs. shall. Well I just recently obtained such clarification by means of law.

I have always trained all my inspectors to indicate deficiencies using the word shall.
During a recent deposition the defendant's attorney(sprinkler contractor) indicated that he is not authorized to use the word shall during reports because he is not entitled to enforce any codes.

The plaintiffs's attorney (property owner)indicated that if they new that this deficiencies where mandatory as shall means they would have address these issues long time ago.

At the end of the case the Judge ruled that the defendant (sprinkler contractor)mislead and malpractice the property owner by not properly indicating difference between recommended and mandatory.
He also indicated that by using the word shall you are not enforcing anything but rather it represents the actual wording from the actual as is written.
Also he mentioned that the only means of indicating enforcement is by executing on paper an abatement date. Contractors can not provide that.
As an expert opinion I am glad to provide this information since the whole country is confused about this issue.

 

[rbulsara]

A perfect case of what happens when something goes to litigation. Truth or right thing does not necessarily win. This is what happens when grammar decides a case and not common sense. I think the contractor has been handed a raw deal.

He can't force anyone to do something. He did pointed out the deficiencies, perhaps he failed to indicate it was required by code?

Rafiq Bulsara

http://www.srengineersct.com

 

[NJ1]

What happened was that in the reports he said:
Example: painted heads should be replace when instead the nfpa says shall.
Gauges should be calibrated or replaced instead of shall
Recalled products should be replaced instead of shall

The judge indicated that by doing so the contractor mislead the property owner and caused exposure to property liability

When they asked me I said:
The proper way is to write as is shown on nfpa 25

 

[rbulsara]

I guess that is what appeals are for!

Rafiq Bulsara

http://www.srengineersct.com

 

[NJ1]

Look I am not trying to get in a debate about who is right or wrong but the fact still is that we as contractors take the responsibility to undertake certain tasks because we feel qualified or just because we are certified period. With that comes code of ethics.

I got this information from the NFPA so read carefully:
By 1990 the Standards Council realize that NFPA needed to consolidate all of its documents of Inspection, Testing and Maintenance of Water Based Systems into a single document and that the document should be a standard rather than a recommended practice. By the end of 1991 NFPA 25 was approved by the NFPA committee. It was first release on February 1992.
Since then NFPA has continue to enhance such standard to better mandate requirements vs. recommendations.

With that said the NFPA 25 is the mandatory requirement.
Now just like the Judge said:
If you tell me on any inspection report that I should do something then I am going to consider but not necessarily address immediately.
If you tell me that these items shall be address then we move forward with how to fix it.
Then again just because I said shall does not mean enforcement.

Appeal? they also lost their license for 6 months on top of punitive penalties, etc.

My point is that if we teach our inspector to write just like it shows on the standard we could have less liability.

 

[rbulsara]

I am not arguing with you either. Just my view is that that judgment does appear like a justice. Was the contractor just a report writer or also the installing contractor for the subject project? That would make a difference, in my opinion.

When we consultants do "studies", we routinely write, at least I do, as to what the Owner should do in "studies", not necessarily shall. On the other hand when are the designers of a specific project giving instructions, the "shall" is typically used.

Rafiq Bulsara

http://www.srengineersct.com

 

[NJ1]

I totally understand but if your firm has a service agreement with some one and that agreement says that you will do inspections as per NFPA 25 and you fail to tell me that something is in fact mandatory rather than recommended you simply failed to do your job as contracted.
That was the strongest argument in the case.

 

[SprinklerDesigner2]

I've been saying for years if the company I work for ever gets called into court it will not be something management, the installation fitters or I did it will most likely be something the inspectors did or didn't do. Maybe something they said or didn't say, something they did or didn't write down or maybe just the way they wrote it.

Those in management have to do a better job in bullet proofing their inspectors against legal action, The one thing you do not do when attempting this is use "common sense" or try to apply the concept of "right or wrong.

There isn't any right or wrong, there isn't any room for common sense there's only the idea of resolving conflict and in court that can always go either way.

Those of us who have licenses or certifications have to attend a certain number of hours of "continuing education" every few years and the specified hours are always to short and should, in my opinion, be tripled. How about 32 hours on how to be a better inspector followed by 96 hours of how the inspector should bullet proof himself to avoid law suits?

Sometimes I read things on our inspection reports and all I see is red. Bless their hearts, my inspectors are trying to do the very best job they can, but if anything ever goes really wrong all that good will they tried to build will evaporate like the morning mist on a hot summer day.

 

[NJ1]

SprinklerDesigner2 I see that in this conversation we can see eye to eye.
I came up with 3 main solutions to avoid legal litigation.
1) Only Certified Inspectors to perform anything over quarterly, semi-annual, etc. (inspections and testing.)
2) Only take content from the standard and make that a company policy. Meaning every inspector must see the same deficiencies and it must be written the same way to maintain consistency.
3) Continuing Education must be extended. Promote and require in-house testing more often to prepare for these issues.

Listen I know we are all humans but that does not excuse our responsibility to deliver as promise.
Use every tool possible within the organization to keep our guys at the top of their games.

This case was very hard for me because I was hired by the plaintiff. As a licensed individual I dont ever want to be on the defendant side.

 

[chicopee]

"should" is a recommendation
"shall" is legally mandated

 

[NJ1]

chicopee thanks so much for your comment.

It is what it is. Can not change the code but you can change your approach.

 

[JerSPK]

Just curious, but does code require that these official terms like should or shall be used on an inspection report in the first place?

For instance if I inspected a building where a closet does not have a sprinkler, is it not acceptable to put in the recommendation section:

"Provide sprinkler in entry closet per NFPA 13 requirements."

or should it read:

"Sprinkler shall be provided in entry closet per NFPA 13 requirements."

Typically when we run into something like this we make it abundantly clear to the owner that the work needs done and we make sure it is done as soon as possible. Still, for the times when they want to dawdle around forever I'd rather that we cover our butts from a potential lawsuit. Are both statements above acceptable?

 

[ChrisConley]

Legally, I won't comment on the two statements. Functionally I'd argue that both statements are valid in telling the Owner that a sprinkler is required in the space to meet the requirements of NFPA 13.

 

[NJ1]

JerSPK

First of all it is not the intent of NFPA 25 to identify installations flaws such as the one you described however by sending a separate letter indicating such current deficiency. When that building was built there is a possibility that NFPA 13 did not require sprinklers in closets. You are not required to bring systems to new codes. And yes you could put that on a report as a recommendation.
What we are talking here is when a NFPA 25 deficiency is noticed but instead of telling the owner on the report that the code says shall you tell him should instead.
That indicates contradiction and misleading the end user.

I also would like to make clear that if you start writing NFPA 13 deficiencies on sprinkler reports you could be more liable vs. not wring anything at all.

 

[NJ1]

I want to share something very interesting in a new thread.
Look for NFPA 13 Deficiencies

 

[dpc]

As a licensed individual I dont ever want to be on the defendant side

As a licensed individual, I would only want to be on a defendant's side.

The problem with inspections is that you have a $1000 fee and virtually unlimited liability if you don't address this very specifically in your contract or terms of service.

Any inspection report must be very clear about any perceived Code violations.

David Castor

http://www.cvoes.com

 

[NJ1]

What that means is that I dont ever want to be the person being sued

Read my new post