April 2017 – Law and Civil Engineering
THE LAW AND CIVIL ENGINEERING – APRIL 2017 NEWSLETTER
An Engineer is Not a Guarantor
by Eugene Bass
An engineer designed a pier in front of a luxury hotel in Southern California. The pier had been designed and constructed after completion of a feasibility study to determine if the pier could be built, the size of the principal members required and the estimated cost of construction. The feasibility study specifically did not encompass economic feasibility which would have included considerations of usage, operation and financing and other economic factors of the facility. An economic feasibility study would have cost substantially more money than the study that was performed. The engineer assumed that the owner was familiar with the site in front of the hotel and knew that the pier would not be usable at all times because of the shallow water and local sea conditions.
The engineer prepared a design for the facility that was to be built by a contractor paid by the owner. At the design phase, the engineer’s responsibility was to design a structurally sound pier that would withstand the exposure of the site. When the facility was completed, it proved to be unpopular with the hotel guests and was unusable much of the time because of wave conditions and exposure. The dissatisfied owner sued the engineer claiming that the engineer impliedly warranted, as part of the contract, that the pier and floats it had designed were reasonably suitable for use by small craft and contended that the engineer should be strictly liable for the failure of the pier to function as intended by the owner.
The court disagreed with the owner’s contentions, holding that is was the well settled rule in California that the doctrines of implied warranty and strict liability did not apply where the primary objective of a transaction is to obtain services. The court stated that the engineer was not a seller of property who obligated himself as part of his bargain to convey property in the condition represented. It is the general rule that those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.
The services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for negligence. Those who hire such persons are not justified in expecting infallibility, but can expect only reasonable care and competence. They purchase service, not insurance.