ARTICLE
16 November 2021

Focus On Infrastructure

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Wilson Elser Moskowitz Edelman & Dicker LLP

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More than 800 attorneys strong, Wilson Elser serves clients of all sizes across multiple industries. It maintains 38 domestic offices, another in London and enjoys more extensive international reach as a founding member of Legalign Global.  The firm is currently ranked 56th in the National Law Journal’s NLJ 500.
Our nation is in crisis. We refer to an infrastructure crisis with bridges, tunnels, railroads, overpasses, sewers, water supply, electrical grids and some buildings, although safe and code compliant...
United States Real Estate and Construction
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(November 5, 2021) - Stratton Horres, Karen Bashor and Taylor Buono of Wilson Elser LLP present lessons learned from recent tragedies caused by the failure to maintain and update infrastructure.

Our nation is in crisis. We refer to an infrastructure crisis with bridges, tunnels, railroads, overpasses, sewers, water supply, electrical grids and some buildings, although safe and code compliant when originally constructed, are no longer either.

These hard infrastructure facilities, structures and systems are essential not only to sustain and enhance our high standard of living but also to ensure our safety. In fact, they pose unacceptable risks to our society. This article examines the legal issues and addresses the safety concerns posed by an aging infrastructure sorely in need of updating and the consequences of failing to do so.

According to a recent report issued by the nonprofit research group First Street Foundation, as much as 25% of all critical infrastructure in the United States is at risk of becoming inoperable due to flooding.1 The same report also found that 14% of residential properties, 25% of roads and 20% of commercial properties face a similar risk.

Further, the Foundation commented that climate change and weather events are more likely to impact the nation's infrastructure than other physical attacks, energy crises or terrorism. And since 2000, major power outages caused by weather and climate-related events have increased 67%.2

Power outages and major weather events stress all parts of our infrastructure, including roads, bridges, tunnels, water systems and buildings. Our facilities and structures are literally at war with Mother Nature, and she is winning.

State of the nation: America's below-the-grade infrastructure report card with climate changes looming

In 2021, the American Society of Civil Engineers (ASCE) released its new report card for America's infrastructure.3 While the nation's overall grade improved to a "C-" for the first time in 20 years, there are still significant gaps in America's infrastructure that require improvement.

According to the report card, of the more than 617,000 bridges in the United States, 42% are at least 50 years old, and 7.5% are structurally deficient. And the "C" grade afforded to bridges this year is worse compared with the "C+" grade given in 2017.4

Other key parts of America's infrastructure received less than satisfactory grades. Roads, critical to the ever-increasing transportation of people and goods, received a "D," with more than 40% of roads in poor or mediocre condition.

Stormwater systems, which are ever more important given the increase in major weather events over the past two decades, also received a "D." The report card noted that the expansion of impervious surfaces in cities and suburbs has exacerbated urban flooding, resulting in approximately $9 billion in damages annually.

Other "D+" or lower ratings were given to the nation's aviation, dams, hazardous waste, inland waterways, levees, public parks, schools, public transit and wastewater structures. The report persistently recommends that the nation consider the impact of climate change and that our valuable infrastructures be made "climate resilient."

Outdated infrastructure can result in catastrophic consequences locally and globally

We find ourselves today in dire straits, and the consequences of failing to address the critical infrastructure issues in America and around the world could be catastrophic. Let's look at a case in point: the collapse of the Ponte Morandi, a bridge in Genoa, Italy.

In August 2018, the Ponte Morandi in northwest Italy collapsed, resulting in 43 deaths. Construction for the cable-stayed bridge was completed in 1967, making it 51 years old at the time of its collapse. Riccardo Morandi, the bridge's designer, was aware corrosion might cause structural problems and recommended thorough tests. But tragically, the bridge operator did not carry out the tests.

A lengthy report on the collapse concluded it was caused by problems with the design and construction of the bridge, as well as a lack of maintenance, which resulted in corrosion of the steel cables, ultimately causing them to snap.

The corrosion may have been the result of sea air and local factory pollution. The report stated that throughout the bridge's lifetime, no maintenance was conducted to prevent deterioration or repair any flaws.5

The bridge was operated by Autostrade per l'Italia, a company controlled by a powerful Italian family. In a settlement, Autostrade agreed to pay $3.9 billion to compensate victims and cover replacement of the bridge, and the family agreed to turn over Autostrade to a government-owned bank.

But these significant financial penalties were not the end of the repercussions. Last year, an investigation into highway neglect resulted in the arrests of Autostrade's former chief executive and top managers.

The judge who ordered the arrest warrants said the handling of bridge maintenance constituted "grave criminal conduct, linked to entrepreneurial policies aimed at maximizing profits deriving from the contract with the state, through the reduction and the delay of expenses needed to maintain the motorways, at the expense of public safety."

Prosecutors are also considering charges against former employees of the infrastructure group and former and current government officials for avoiding proper checks of the infrastructure.6

But we need not need go abroad to see what our future holds if our infrastructure is not brought up to date. On June 27, 2021, the Surfside Condominium collapse in Miami, Florida, showed in vivid detail the devastating consequences of noncompliance.

The sudden condo collapse in the Miami Beach area killed 98 people. Construction for the 136-unit condo building was completed in 1981. A 2018 engineering report noted "major structural damage" and recommended extensive repairs.

Apparently, water was seeping through the foundation because of storm surge and the building appeared to have water damage. In April 2021, two months before the collapse, the condo association's president sent a letter to residents, stating that the building's deterioration was accelerating and proposing $15 million to pay for the structural repairs.7

A video released by federal investigators after the collapse shows evidence of extensive corrosion of the steel column at the foundation. No official reports as to the cause of the collapse have yet been released because the investigations are not complete, though engineers have stated the collapse was likely caused by a culmination of various defects in the structure.

Beachfront properties such as the Surfside condos are often at risk of deterioration due to saltwater seeping through concrete. But issues such as "a lack of waterproofing or too little concrete cover aren't unusual for South Florida condos built in the early 1980s, a time when building codes were laxer and engineering science less advanced."8

Lawsuits were quickly filed after the collapse, and a district judge in Miami-Dade estimated that claims for losses could exceed $1 billion. A Florida State Attorney has announced that the state intends to pursue a grand jury investigation to consider criminal charges.9

Structures that satisfied code requirements or other industry building standards may have been considered safe at the time they were constructed. But subsequent events show that even though a structure was safe when built, it may no longer be safe because it was either constructed poorly or based on outdated standards, or because Mother Nature has taken her toll.

The results could be catastrophic, thereby warranting consideration of testing and renovations as a means of crisis avoidance. In addition, codes change over the years and a code-compliant structure may be out of date with the codes in place today.

Building codes then and now

Notably in the United States, the federal government does not develop or control building codes. Rather, each state or municipality develops or adopts its own building codes. All 50 states have adopted the International Code Council (ICC) model building codes, which are updated every three years, and allow jurisdictions to amend the codes to suit their specific needs.10

Florida, for example, has adopted the most recent ICC International Building Code, though the state did not create a statewide building code until 2000. Before 2000, Florida had a very limited role in building codes. But the development of building codes since the 1950s has varied widely across all jurisdictions, because building codes have to be adopted by local governments.

Unfortunately, the development of and change in building codes is more reactive than proactive. Changes to building and construction codes often come in the aftermath of catastrophe. Florida's adoption of a statewide building code was in response to the disaster caused by Hurricane Andrew in 1992, which revealed significant loopholes in the existing codes and exposed lax enforcement.11

After a 2007 bridge collapse in Minnesota, resulting in 13 deaths and 145 injuries, the state took action to update its codes and improve required inspections.12 Certainly, the Surfside collapse will spur changes in codes and enforcement in Florida and across the nation, especially in areas prone to more significant hazards caused by Mother Nature.

Today, building codes and regulations are more comprehensive than the codes of the past, thanks to advanced technology and understanding, as well as attempts to prevent future disasters.

A recent study issued by the Federal Emergency Management Agency (FEMA), which states that only about 70% of new buildings were constructed to International Code standards since 2013, found that significant losses could be avoided by complying with the International Codes, amounting to $1.6 billion in average annual avoided losses.13

However, America's aging infrastructure has not been brought up to speed. Miami-Dade requires recertification for electrical and structural safety every 40 years,14 but is that always enough given our rapid technological advances and heightened understanding of the destructive forces of nature? What's the solution on a federal and state-wide level as a result of this framework? Mandates for updates and government aid? These questions are being debated today and the answers are uncertain.

As referenced above and seen with various examples in America and around the world, failure to update outdated infrastructure can result in crisis, though there is no legal duty requiring action.

Considerations for failure to inspect, failure to perform necessary renovations and delayed action can be attributed to various reasons that run the gamut from the extraordinary financial investments required for such an overhaul, the financial losses that would have to be endured during such overhaul and legal concerns about taking affirmative steps, when not otherwise legally required.

However, as seen by the catastrophic results that can ensue from outdated infrastructure and delays in updating, crisis is a possibility and the financial concerns and legal implications then are far more grave.

We must be mindful of the litigation climate, whereby as a result of social inflation, pandemic consequences and other factors, good crisis management in the wake of catastrophe is even more essential as the risk of nuclear scenarios becomes more prevalent at trial.15 Of course, all specific situations are unique and should be addressed on a case-by-case basis.

Suggestions on laying the foundation for a stronger future

The bottom line is that we as a nation need a drastic and immediate change in mindset. We are gambling with time and climate change. Our current national report card is telling of where we are and where we need to be. The studies and the science should not be ignored. Both governmental and private entities would benefit from doing the research, paying attention to recommendations informed by the science and considering the world in which we live.

We need to double down and be proactive to bring our hard infrastructure into compliance with the most recent ICC model codes at a minimum, because any significant delay in necessary maintenance or repairs might be too late.

Acting now allows us to sustain our buildings as lasting monuments to their art, architecture and history, and demonstrates our commitment to building a stronger and safer future for generations to come. Building owners can expect a reduced long-term risk if they take the steps to ensure their structures are up to scratch. We must act now to win the war with Mother Nature; failure to do so could be catastrophic.

Footnotes

1 Joseph Choi, One-Quarter of Critical Infrastructure at Risk of Failure from Flooding: Research, The Hill (Oct. 11, 2021), https://bit.ly/3ExpEnx.

2 Tara D. Sonenshine, America's Infrastructure Is Failing: What Needs Fixing First? (Mar. 8, 2021), https://bit.ly/3CPvujP.

3 2021 Report Card for America's Infrastructure, American Society of Civil Engineers, https://bit.ly/3pUQIJ8.

4 See 2017 Report Card for America's Infrastructure, American Society of Civil Engineers, https://bit.ly/3mBdgge.

5 Gaia Pianigiani, Poor Maintenance and Construction Flaws Are Cited in Italy Bridge Collapse, N.Y. Times (Dec. 22, 2020), https://nyti.ms/3CHWkdC; Jeffrey Heimgartner, The Rise, Fall, and Rebuild of the Doomed Morandi Bridge, Engineering.com (Aug. 25, 2020), https://bit.ly/2Y6yBVl; Italy Bridge Collapse: What Might Have Caused It? BBC (Aug. 15, 2018), https://bbc.in/3jWXJpc; Lack of Controls Among Causes of Genoa Bridge Disaster, Technical Report Says, Reuters (Dec. 21, 2020), https://reut.rs/3qbLhWH.

6 Eric Sylvers, Battle Over Bridge Collapse Costs Italy's Benetton Family Its Highways Business, Wall Street J. (July 15, 2020), https://on.wsj.com/3pUQwto; Gaia Pianigiani, 3 Arrested in Genoa Bridge Collapse Investigation, N.Y. Times (Nov. 11, 2020), https://nyti.ms/31noDA7; Francesca Landini & Emilio Parodi, Italian Prosecutors Prepare Possible Charges Based on Genoa Bridge Probe, Reuters (April 22, 2021), https://reut.rs/3BAPWTR.

7 Jade Lawson, What We Know About the Surfside Condo Collapse, ABC News (Sept. 19, 2021), https://abcn.ws/3bvNIdT; Joe Hernandez, What Led to the Florida Condo Collapse? Here's What We Know So Far, NPR (June 29, 2021), https://n.pr/3pRxJ2i; Anjali Singhvi, et al., The Surfside Condo Was Flawed and Failing. Here's a Look Inside, N.Y. Times (Sept. 1, 2021), https://nyti.ms/2ZS1UM1.

8 Konrad Putzier, Scott Calvert, & Rachael Levy, Behind the Florida Condo Collapse: Rampant Corner-Cutting, Wall Street J. (Aug. 24, 2021), https://on.wsj.com/3pVor5i.

9 Lori Rozsa, The Prospect of a Speedy Real Estate Deal Compounds Some Surfside Families' Grief, Washington Post (Oct. 18, 2021), https://wapo.st/3GFdyuk; Prosecutors Will Ask Grand Jury to Probe Surfside Building Collapse, NBC 6 South Florida (June 29, 2021), https://bit.ly/3pWf5WR.

10 The International Codes, International Code Council, https://bit.ly/3jRJrGg (last visited Oct. 18, 2021); What Are Building Codes and How Do They Help You? Roofing Contractor, Aug. 1, 2004, at 46.

11 Kim Bellware, Hurricane Andrew Transformed Florida's Building Codes. The Champlain Towers Collapse Could Usher in a New Era of Regulations, Washington Post (June 30, 2021), https://wapo.st/3mBqOIE.

12 David Schaper, 10 Years After Bridge Collapse, America is Still Crumbling, NPR (Aug. 1, 2017), https://n.pr/3nL3iIh.

13 Building Codes Save: A Nationwide Study, FEMA ES-6, Nov. 2020, available at https://bit.ly/3jW9k7W.

14 Miami-Dade County, Fla., Code § 8-11(f).

15 Stratton Horres & Karen Bashor, Defending Billion-Dollar Claims: Nine Best Practices for 10-Figure Losses, CLM Magazine, Aug. 2021, at 26 (https://bit.ly/3GCZx0e). Stratton Horres and Karen Bashor, Preparing for the Big One: When a Billion-Dollar Claim Is on the Line, Remember to Assemble, Mobilize, Preserve and Strategize, CLM Magazine, Oct. 2021, at 10 (https://bit.ly/2ZOiAUO).

Originally published by Westlaw Today.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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