Sigh.. IANAL and , apparently neither are you. From an on-line legal
dictionary:
Malice aforethought is the the deliberate intent to cause death or great
bodily harm to another person before a person commits the crime. Malice
aforethought is an element that must be proved in the crime of first
degree murder. This description of the perpetrator's state of mind
basically means that he or she had an intent to inflict injury without
legal justification or excuse (legal justification included such
defenses as self-defense, while excuse includes mental illness and duress).
Malice aforethought is comprised of any one of the following three
elements: (1) an intent to kill; (2) an intent to inflict grievous
bodily injury; or (3) an intent to act in a manner that creates a plain
and strong likelihood that death or grievous harm will follow. Of these
three prongs of malice, the first two prongs require a specific intent
on the part of the defendant, measured subjectively, while the third
prong only requires a general intent, measured both subjectively and
objectively. Accordingly, malice aforethought may exist without an
actual intent to kill or do grievous bodily harm, if there is proof of
the "third prong" of malice. This simply means that the perpetrator knew
of circumstances that a reasonably prudent person would have known
created a plain and strong likelihood of death or grievous bodily harm
resulting from the perpetrator's act. The law can infer malice from
circumstantial evidence, such as from the intentional use of a deadly
weapon.
How any reasonable person could get from that, to an unwillingness to
make simple decision about probable soil conditions, is beyond my
understanding. Having participated in many conferences with plaintiff
attorneys & court appointed Special Masters I am fairly familiar with
the concept of Sovereign Immunity. City's and Code Officials are never
targets in defect litigation suits even when they make egregious errors
in Plan Check &/or inspection. I suppose if you were taking bribes there
might be liability, but not from the ordinary exercise of judgment in
your duties.
Chuck Utzman
> ____________________
> From: Brian Gerving [mailto:bgerving@ci.eureka.ca.gov]
> Sent: Friday, February 15, 2008 2:01 PM
> To: seaint@seaint.org
> Subject: RE: Soils Reports under CBC 1802.2
>
> Why the indecision? Building officials certainly do have personal liability
> if malice or forethought is involved in a given decision. Discussing issues
> like this ad nauseam, which believe me, building officials around the state
> have done, definitely qualifies as forethought.
>
> Regarding the ability of building officials to waive soils reports, please
> read the text of the exception to Section 1802.2:
>
> "The building official need not require a foundation or soils investigation
> where satisfactory data from adjacent areas is available that demonstrates
> an investigation is not necessary for any of the conditions in Sections
> 1802.2.1 through 1802.2.6."
>
> Note that the exception does not apply to Section 1802.2.7, which is what
> triggers soils reports for structures assigned to SDCs D, E, and F.
>
> Brian
>
>
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