Legal Concepts for Facility Managers E-Book

Linda Thomas-Mobley

• Herausgeber: John Wiley & Sons
• Kategorie: Wissenschaft und neue Technologien
• Sprache: Englisch

Seitenzahl: 476

Veröffentlichungsjahr: 2014

Beschreibung

Legal Concepts for Facility Managers

Facility management – as any profession encompassing multiple disciplines and integrating technology, people and physical space – is not only complicated but fraught with occasions to be exposed to various legal liabilities.

Successful facility managers need the ability to manage risk well. They must understand the various ways the built environment can malfunction, anticipate the most likely problems and protect the owner’s interest in such a way that the building can be safe for occupants yet productive for business purposes. The Facility Manager must therefore know the major tenets of risk avoidance, including knowledge of possible legal obstacles.

Legal Concepts for Facility Managers informs facility managers of their legal responsibilities and helps them avoid unnecessary exposure to liability. Each major legal theory is explained and illustrated with charts or case histories. Chapter discussion questions help students recall salient information and are also intended to be used as homework assignments or prompts for classroom discussions.

As with any legal textbook expressly written for professionals who are not in the practice of law, the objective of this book is to inform students about their legal responsibilities. This text is not intended for students preparing to practice the law. It can be used in any course that teaches built environment professionals how to avoid unnecessary exposure to legal liability.

Leseprobe

Table of Contents

Title Page

Copyright

Dedication

About the Author

Acknowledgments

Preface

Part I: Fundamentals

Introduction

Chapter 1: American Jurisprudence

1.1 Introduction

1.2 Definition

1.3 Functions

1.4 Sources of law

1.5 Chapter summary

1.6 Questions

References

Chapter 2: Law in Operation

2.1 Introduction

2.2 A brief background on US courts

2.3 Functions of the US legal system

2.4 Chapter summary

2.5 Questions

References

Chapter 3: Legal Concepts

3.1 Introduction

3.2 Who are the players?

3.3 Statutes

3.4 Administrative laws

3.5 Executive orders

3.6 Common law

3.7 Appeals

3.8 Recording the common law

3.9 The United States Constitution

3.10 Legal research

3.11 Useful legal theory

3.12 Legislation

3.13 Procedural and substantive laws

3.14 Chapter summary

3.15 Questions

References

Summary of Part I

Part II: Facility Management and the Law

Introduction

Chapter 4: Property Law I: Rights

4.1 Introduction

4.2 What is property?

4.3 Property law

4.4 Personal property for Facility Managers

4.5 Property ownership

4.6 Rights to real property

4.7 Legal duties of the parties

4.8 Chapter summary

4.9 Questions

References

Chapter 5: Property Law II: Responsibilities

5.1 Introduction

5.2 Legal duty of care

5.3 Americans with Disabilities Act

5.4 Chapter summary

5.5 Questions

Chapter 6: Environmental Law

6.1 Introduction

6.2 Historical perspective

6.3 Complications with environmental law

6.4 The role of regulators

6.5 Sources of environmental law

6.6 State laws

6.7 Common violations

6.8 Chapter summary

6.9 Questions

References

Chapter 7: Tort Law

7.1 Introduction

7.2 What is a tort?

7.3 Defenses to torts

7.4 Premises liability

7.5 Damages

7.6 Chapter summary

7.7 Questions

References

Chapter 8: Contract Law

8.1 Introduction

8.2 Defining contract law

8.3 Autonomy to contract

8.4 Built environment contracts

8.5 Contract elements

8.6 Statutes of fraud

8.7 Other legal issues in contract law

8.8 Contract interpretation

8.9 Contractual duty

8.10 Preserving the risk assignment

8.11 The property lease contract

8.12 Additional contract concepts

8.13 Chapter summary

8.14 Questions

References

Chapter 9: Criminal Law

9.1 Introduction

9.2 Criminal procedure

9.3 Facility management and crime

9.4 Chapter summary

9.5 Questions

References

Chapter 10: Employment Law

10.1 Introduction

10.2 Employment statutory law overview

10.3 Independent contractors

10.4 Labor law

10.5 Chapter summary

10.6 Questions

References

Chapter 11: Emerging Legal Issues

11.1 Introduction

11.2 Environmental justice

11.3 The Construction Manager

11.4 Project delivery systems

11.5 Surety bonds

11.6 Design bid build

11.7 Design build

11.8 Construction Manager at risk

11.9 Construction Manager, agent

11.10 Integrated Project Delivery

11.11 Design services

11.12 Evidence laws and their impact on facility management

11.13 Chapter summary

11.14 Questions

References

Summary of Part II

Part III: Application

Introduction

Chapter 12: Responsibilities of the Facility Manager

12.1 Introduction

12.2 Professional services

12.3 Chapter summary

12.4 Questions

References

Chapter 13: The Professional Facility Manager and the Law

13.1 Introduction

13.2 Health and safety management

13.3 Physical security issues

13.4 Vicarious liability

13.5 Premises liability litigation

13.6 Chapter summary

13.7 Questions

References

Chapter 14: Risk Management

14.1 Introduction

14.2 Risk management

14.3 Conflict avoidance

14.4 Insurance

14.5 Chapter summary

14.6 Questions

References

Summary of Part III

Cases

Index

This edition first published 2014

© 2014 by John Wiley & Sons Limited

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Library of Congress Cataloging-in-Publication Data

Thomas-Mobley, Linda

Legal concepts for facility managers / Linda Thomas-Mobley.

pages cm

Includes bibliographical references and index.

ISBN 978-0-470-67474-1 (pbk.)

1. Facility management— Law and legislation— United States. I. Title.

KF905.F34T48 2014

349.73024′6582— dc23

2013026693

A catalogue record for this book is available from the British Library.

Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books.

Cover image: © Shutterstock/zayats-and-zayats

Cover design by Meaden Creative

About the Author

Linda Thomas-Mobley is Director of the Construction Management Program at the Stevens Institute of Technology in New Jersey, and former Dean and Chair of the Construction Management Department at the New School of Architecture and Design in San Diego, California. She formerly served as Associate Chair of the School of Building and Construction at the Georgia Institute of Technology. She is a veteran academic with professional experience as a Construction Manager, Facility Manager and an attorney at law. As a professor teaching graduate and undergraduate students how to navigate the US legal system and avoid exposure to liability, she discovered the need for an illustrated legal textbook for built environment professionals. She holds a Juris Doctorate in law, a BS and MS in Civil Engineering and a PhD.

Acknowledgments

To my love, Michael, you poor soul; thanks for taking care of me, keeping me safe and accompanying me along this unfamiliar journey. To my daughter, Morgan; thanks for your encouragement, never forget who you are, where you come from and how to balance your checkbook. And to my sister, Carroll; thanks for always setting the bar just beyond my reach.

Thanks to all of my friends and colleagues at the NewSchool of Architecture and Design, your encouragement helped me make it through many a long night.

Finally, I am forever indebted to Lucy Campbell for her cheerful disposition and stern reminders to keep writing.

Preface

In the state of nature…all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the law.

Charles de Montesquieu, French lawyer and philosopher (1689–1755).

Studying the law is thought by many to consist of memorizing a fixed set of rules, often called “black letter law”. Black letter law refers to the basic rules of law accepted by most judges in most areas. Knowledge of these rules is important but simply knowing applicable rules does not do justice to the study of law. For example, merely knowing that thou shall not kill is inadequate. What exactly is “killing”? Also, if someone kills according our definition, shall we punish the killer by killing her? Would we then be killed? The act may be the result of war or in defense of a spouse, or in the case of capital punishment, even authorized by the state. Simply memorizing black letter law prevents one from fully understanding, disguising the beauty of its logic, and how legal theory evolves over time.

For example, Hammurabi, a First Dynasty king of the city-state of Babylon in 1792 BCE, is best known for proclaiming a new code of Babylonian law called the Code of Hammurabi. Many consider this code one of the first written laws in the world1. Paraphrasing Hammurabi's Code, if a builder constructs a house and it falls and kills the owner, the builder is to be slain2. Memorizing this rule is useless for modern built environment disputes, but understanding that the builder has a special duty to build a structure that does not fall and kill the owner, is a legal principle that has survived. The deeper we investigate the study of law the sooner we learn that “there is no abstract rule of law outside of any specific fact situation”3. That means the answer to the often-asked question, “Can I get sued if…?” is always “yes”; because anyone with the requisite filing fee following the court's procedures can sue. It also means the answer to the follow up question, “Will I be held liable if…?” is a resounding “maybe”, because it all depends on the specific facts.

This text is not written to impress my peers but to help non-lawyers understand the legal system and determine where the built environment professional fits into the larger picture. Those who have studied the law may find some sections elementary, but I expect you will find the application of the law to the practice of facility management and examples used instructional. As a former Construction Manager, Facility Manager and practicing attorney, I've written this text not only for students studying facility management but for all who intend to work in the built environment industry. This text focuses on the application of law to the role of the Facility Manager and thereby fills a much-needed gap in instructional literature. Many US undergraduate and graduate facility management programs teach legal issues in the context of construction or business law. However, prior to this text, courses on legal issues for Facility Managers tended to utilize construction law texts and either supplement them with additional case studies and legal topics or simply ignore the subject altogether. It is my intention to address this oversight. I hope to fill the gap experienced by those studying facility management or working in the industry who seek an understanding of legal concepts beyond construction issues. The instructor, either lawyer or non-lawyer, is now equipped with a resource for explaining legal concepts from the viewpoint of the built environment professional managing the facility.

As with any text expressly written for non-legal professionals, the objective is to both enlighten the reader and help keep her free from unnecessary court proceedings. Although the average cost of a trial in the USA is almost impossible to predict, any day a Facility Manager can spend managing facilities rather than sitting in a courtroom is a good day. It is my hope that this text will also demonstrate that the US legal system is not one organism; rather it is a web of integrated organisms.

Currently, standard higher education courses require the student to spend three hours working each week, for every one credit awarded. Additionally many accrediting bodies and the US Department of Education are requiring schools to show evidence that this directive is followed. This book was designed with such a formula in mind, and it is estimated that the average student will require six hours each week reading and preparing for a three-credit class in Facility Management Law. With the exception of cases reported throughout the book, students will find the reading comparable to most undergraduate textbooks.

For reference and explanation of specific legal terms used, it is recommended that the student have access to a legal dictionary. Legal dictionaries, such as Black's Law Dictionary, published by West, contain well-written definitions of concepts you will learn about in this textbook.

The text is organized in three main parts, Part I focuses on an introduction to the US legal system and form of government. Part II introduces the major areas of law. Finally, Part III applies concepts and knowledge gained from Part I and II to modern built environment problems.

Instructional goals for this book include the following:

1. Demystify the US legal system.

2. Link the US legal system to the practice of facility management.

3. Help students acquire and retain legal information.

4. Create “law-literate” citizens.

The specific learning objectives, or what students will be able demonstrate after a course using this textbook include:

Understand how the US legal system operates.

Describe what is legally required from a Facility Manager.

Analyze legal issues faced by Facility Managers.

Evaluate the legal risks involved in the management of the built environment.

Illustrate how to mitigate risks faced by the typical Facility Manager.

Additional learning outcomes for specific chapters will be presented at the beginning of each chapter in hopes of helping the student to focus.

Finally, relevant chapters will end with discussion questions to help students recall salient information and are intended to be used as homework assignments or prompts for classroom discussions.

Now let's get on with learning about the law!

Ut humiliter opinor

1 Breasted (2003)

2 King (2007)

3 Mentschikoff and Stotzky (1981)

Part I

Fundamentals

Introduction

This section serves as an introduction to the US legal system and its unique form of government. The chapters are written to assume that the student has no background in the subject and makes an attempt to define what “law” means. As you will quickly discover, defining the law is difficult because it is more concept or theory than specific rules.

Understanding the three main functions that include regulator, facilitator and dispute resolver is also considered. Finally, appreciating legal theory is difficult without basic knowledge of the US Government and the operation of its three branches.

Chapter 1

American Jurisprudence

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Constitution of The United States of America

1.1 Introduction

Using the famous preamble to the United States Constitution is fitting to begin this chapter, and this entire text, for several reasons. The first and most important reason is because the Constitution is the supreme law of the land in the USA, and all laws must be in accord with this charter. Another reason for using the preamble is because it shows the intent of the founding fathers. All of the words not usually capitalized in the middle of a sentence, such as People, Justice and Tranquility, indicate a higher level of importance placed on these concepts by the founders. Finally, the British spelling of the word “defence” is used instead of the US English spelling of defense. This spelling hints at the origins of US Law that lie in Great Britain.

In Chapter 1, we will consider the basic theory behind US Law. This basic theory or philosophy of law is known as jurisprudence. These theories are typically debated in US law schools at the commencement of a student's course of study. They form the foundation for understanding why judges apply laws in a particular way. The process used by judges applying law to a case is one component of a larger skill set used by judges and attorneys, referred to as legal reasoning. Although deceptively simple sounding, the student is urged not to underestimate the importance of understanding legal reasoning and the resulting legal argument. Briefly, legal reasoning involves understanding what specific issue is at hand; knowing what legal theory governs this type of issue; knowing which facts are relevant to this legal theory and applying the legal theory to the facts.