Mr. MENOCAL. What I am saying is that after a certain period of time, periodically we go through the plans and specifications. If they are six or seven years old we just throw them out. Otherwise, we would be buried under them. Let's say we completed a contract 15 years ago, it is probable that we would not have anything in the way of worthwhile records. We just almost have to depend upon the architect to keep his tracings, and things of that sort. Mr. Winn. I see.

Mr. MENOCAL. Fifteen years ago the people that were working for me may not be here now. As so often-I am a small general contractor and we do have the same fellows who started out with me in 1948, right after the war, but this is unusual. There is a turnover in personnel in our business, the same as in any other.

Mr. Winn. What you are saying, then, is that you do keep a pretty good set of records for four, five, six years, but not as long as fifteen years.

Mr. MENOCAL. No. We certainly do for five years, and most of the stuff in our back room, we could find it seven years old, but if somebody said nine years I would get pretty shaky because I may have gotten sick and tired of seeing it and threw it out.

Mr. Winx. If for some reason Members of the committee wanted this bill to go to a five year limitation, do you think the Master Builders' organization would object to a five- or six-year term in this bill? I am strictly asking your personal opinion.

Mr. MENOCAL. I think so. Personally, I would see no great objection to it. I think that we as contractors have a responsibility or we shouldn't be in the business. We certainly ought to go along for that length of

Mr. Winn. Had your committee had a meeting and discussed this thoroughly?

Mr. MENOCAL. This particular aspect, I do not know.

Mr. Winn. I do not mean the five or six year limitation provision. I mean, they have discussed this bill thoroughly?


Mr. Winn. And they were all unanimous or practically unanimous in the decision as to your position here today?

Mr. MENOCAL. Oh, sure; yes, sir.
Mr. Winn. Thank you.
Mr. ABERNETHY. Thank you very much, gentlemen.
Mr. Duvall.



Mr. Duvall. My name is J. Sprigg Duvall, Assistant Vice President of the Victor 0. Schinnerer Company, Inc., Washington, D.C. My company serves as professional liability consultants to the American Institute of Architects, the National Society of Professional Engineers, the American Society of Landscape Architects, and the American Congress on Surveying and Mapping. I would like to give you a couple of examples that illustrate the problem that the design profession and the building industry are faced with in the absence of a statute of limitations.

In 1928 an architectural firm designed an auditorium, which was built in the same year. In 1965 a visitor to the auditorium was injured when she fell on a stairway leading from the balcony. She sued the owner, alleging that her injury was due to improper location of a handrail. The owner in turn filed suit against the architect for alleged negligence in designing the stairway and handrail. The architectural firm is now defending itself against a $50,000 lawsuit, brought 38 years after the job was performed.

In 1934 an engineering firm designed a grain elevator which was built in the same year. In 1957 the grain elevator was destroyed by an explosion. In 1959 the owner sued the enginer for $250,000, alleging that the explosion was due to errors in designing the ventilation system. This suit, brought some 25 years after the work had been completed, was successfully defended only after lengthy and costly legal proceedings.

These and similar cases underscore the need for a statutory limitation on the time permitted for bringing an action against architects and engineers. The defense of the defendant architect or engineer is severely handicapped by the passage of time between the completion of his services and the accident or occurrence.

Those persons involved in the design and constructiou of the building may have died or can no longer be located. Even if they can be found they cannot reasonably be expected to recall events and discussions that took place years ago. In the first case I cited, none of the architects involved in the design of this project are alive today, yet this firm is being sued.

Plans, specifications and contracts may have been lost or destroyed. Building codes and statutes applicable to the work may be unavailable. In the handrail case, the building code requirements concerning stairways and handrails in that locality are a key factor. However, as of last Friday the defense lawyers have been unable to locate any record of the building code as it existed in 1928.

Building codes, design standards and construction technology have been steadily improved over the years. However, when a claim is made against an architect or engineer, based on work done years ago the tendency is to evaluate that past work by today's standards. In the grain elevator case the plaintiff in effect alleged that the engineer should create in 1934 a ventilation system based on 1959 standards and technology.

No matter how well designed and constructed, every building requires some degree of care and maintenance. The architect or engineer has no control over the owner's neglect which might cause dangerous conditions to develop over the years. Nor can he prevent the owner from using the building for purposes for which it was not designed, nor can he prevent alterations or changes to the building.

The law has long recognized the difficulties involved in obtaining a fair trial many years after alleged negligence took place. Statutes of limitations have been imposed on many types of damage suits. Even the criminal is protected by statutes limiting the time for prosecution for his crimes.

The lack of a time limit on claims creates a special injustice in the case of the retired architect or engineer. Even though his work may have been free of fault, his life savings could be wiped out by the cost of defending his past actions. At the time when he has reached the end of his productive life and is living on a reduced income, he remains vulnerable to claims arising out of his past practice. He has no practical alternative but to continue to carry costly professional liability insurance for the remainder of his life.

Fairness and equity require passage of legislation which imposes a reasonable limit on the time when suits can be brought against the professional designer and builder. Since 1960, thirty States have enacted statutes of limitation similar to that proposed for the District of Columbia. The legislatures of ten other States are currently considering comparable bills.

We urge this subcommittee to give favorable consideration to the pending bills.

We thank the subcommittee for the opportunity of expressing our views on this subject. We are prepared to furnish the subcommittee with whatever additional information it may wish.

Mr. ABERNETHY. Mr. Duvall, you have certainly made a fine statement in justification of some legislation. I don't know whether it will be exactly before the committee now, but there will certainly be some. Mr. Winn?

Mr. Winn. These are interesting cases that Mr. Duvall recited. I would also like to point out, Mr. Chairman, that when one refers to changing building codes, it has been proven time and time again, that they may be one way in 1928 and that might be the best technical knowledge that we have of the circumstances, but in 1938 ten years have elapsed and ten years of technical changes have come about and the codes are changed. This, of course, is one of the problems.

The other problem is, who says the building codes are a perfect example of how to install something.

Would your organization have any objection to a longer time limitation? I am not saying this is what we want to do, I am just asking because it seems as if there was some objection or question as to the four-year term as the shortest one that any of the States have.

Mr. DUVALL. From our point of view, of course, we are not the people who are paying the money; the architect or engineer or builder are the ones suffering the economic loss, but I think, from our point of view, our advice to the professional societies is that the principle of establishing a reasonable limitation on time is more important than the time itself, the amount of time involved. So on that basis I would have no objection to a somewhat longer period. I have some statistical data that we have accumulated in order to present to one of the State Legislatures studying the statute, that might be of interest to you. This study was based on 570 cases that were then being defended around the country. It was a random selection of cases.

A four-year statute would have permitted 84.3 percent of those claims that were then pending. In other words, a four-year statute would have eliminated about 15 or 16 percent of the claims then pending against architects and engineers. A six-year statute would eliminate about 7 percent of the claims.

Mr. ABERNETHY. How much?

Mr. DUVALL. Seven percent. A five-year statute would eliminate about 10 percent.

Mr. Winn. Mr. Duvall, can you submit that without going through all the information for the record, because I think the other members of the subcommittee might like to have that.

Mr. ABERNETHY. Yes, I think so, too.

Mr. DUVALL. I do not have in the form that I could give it to you now, but I could put a heading on it, and so forth, and then submit it

to you.

Mr. ABERNETHY. Suppose you reduce that to such form as you would like and then submit it and it will appear in the record as part of your statement.

Mr. ĎUVALL. Yes, sir.

(Subsequently, the following letter and exhibit were received for the record:)


Washington, D.C., October 17, 1967. Hon. THOMAS G. ABERNETHY, Chairman, Subcommittee No. 1, House District Committee, Longworth House Office Building, Washington, D.C. (Attention of James T. Clark).

Dear Sir: It is respectfully requested that the attached exhibit be added to my testimony on behalf of a Statute of Limitation for architects and engineers.

This study was made in 1964, using a random sample of 570 professional liability claims then pending against architects and engineers. Cordially,

J. S. DUVALL, Assistant Vice President.

[blocks in formation]

Mr. WINN. No more questions.
Mr. ABERNETHY. Thank you very much.

Now we have some statements here. I don't know whether representatives of these societies and associations concerned are in the room this morning. We have the statement of John J. McDermott, in behalf of the Washington Building Congress; a statement of Mr. Quinn, member of the Board of Directors of the Metropolitan Chapter of the Associated Builders and Contractors, Inc.; Mr. Leslie F. Weaver, of the D.C. Society of Professional Engineers, and a statement in behalf of the National Society of Professional Engineers, which will be included in the record. Are these gentlemen here? Do you care to make a statement in addition to having this incorporated in the record?

Mr. McDERMOTT. I would like to make a statement.
Mr. ABERNETHY. Please state your name.


BUILDING CONGRESS, INC. Mr. McDERMOTT. Mr. Chairman, I represent some 1600 members of the Washington Building Congress, the trade association representing the construction industry of the Metropolitan Washington area. I am also president of McDermott Associates, general contractors, and past president of the Master Builders' Association, local chapter of the Associated General Contractors of America. I have also served for many years on the Negotiating Committee of the Construction Contractors Council.

The Washington Building Congress endorses the principles of H.R. 6527, and we wholeheartedly urge the approval and passage of this measure.

A long standing problem that we in the construction industry have faced for quite some time is incorporated in the District of Columbia Code, Section 21-301, providing that actions for damages shall be brought within three years after the "cause of action accrues.” In actions for damages for injury to person or property, the cause of action does not accrue until the injury accurs, and until this happens there is no statute of limitations in effect.

The purpose of a statute of limitations is to bring repose and to bar efforts to enforce stale claims for which important evidence might have been lost or destroyed.

It is recognized that a statute of limitations will no doubt lead to hardship in some cases, but it should also be recognized that the complete absence of a statute of limitations could also lead to an unfair situation. It is further understood that the hardship of the person who is injured by reason of negligent design or construction of real property should be adequately compensated; that the architect, the engineer, and the contractor should be responsible for their work. On the other hand, the architect, engineer and contractor whose negligence in construction caused the injury should not be held liable without a definite limitation of that period.

We believe that legislation should represent a fair compromise creating a period during which the engineer, architect and contractor may be liable for such damages and a limitation on that period after which they would not be so liable.

We believe that a measure should be enacted to relieve responsibility of suits by persons injured as a result of negligent improvements to real property which suits are brought against persons who designed, planned, built, or supervised the building or the improvement and, thereafter, have no control over the property. Legislation should not limit the injured party's rights against the owner or landlord of the property, whose liability for maintaining an unsafe structure would be unaffected by this bill.

Some statute of limitations is necessary to apply the policy of providing a cut-off time during which actions can be brought for damages against persons who were once involved in a particular improvement to real property but who are no longer interested in that property. After the initial construction or improvement, the owner should be responsible for the upkeep and safe condition of the property.

The Building Congress recognizes the responsibility that those associated with the construction industry have to the general public,

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