July 2017 – Law and Civil Engineering
THE LAW AND CIVIL ENGINEERING – JULY 2017 NEWSLETTER
The Engineer’s Duty to Report a Defective Structure
by Eugene Bass
The law provides that an engineer performing professional services for a client, owes that client the duty to have that degree of learning and skill ordinarily possessed by reputable civil engineers, practicing under similar circumstances. The engineer also has the duty to use the care and skill ordinarily used in like cases by reputable members of the profession practicing under similar circumstances. In addition, the engineer has the duty to use reasonable diligence and best judgment in the exercise of skill and the application of learning. The failure to perform any one of these duties is defined as negligence.
Determination of the standard of care is a moving target and purely local practices cannot be relied upon for the determination of that standard. Obviously, local practices can develop that, while expedient, may not comply with what is considered to be good practice on a nationwide basis. With modern communication, determination of the duty of care for a prudent engineer will involve consideration of practices other than locally.
The Attorney General of the State of California had rendered opinions on particular legal questions that existing laws do not adequately address and where there is no other clear legal precedent available. A hypothetical situation of interest to civil engineers was presented to the Attorney General for an opinion. The question asked if a registered engineer is retained to investigate the integrity of a building and determines, based on structural deficiencies in violation of applicable building standards, that there is an imminent risk of serious injury to the occupants of the building, and who is advised by the owner that no disclosure or remedial action is intended and that such structural deficiencies and the fact that there is an imminent risk of serious injury to the occupants of the building are to remain confidential, has a duty to warn the identifiable occupants or, if not feasible, to notify the local building officials of such determinations.
The Attorney General’s opinion was that under the circumstances presented, the engineer had the duty, notwithstanding the owner’s direct instruction to keep the findings confidential, to warn the identifiable occupants of the building or, if not feasible, to notify the local building officials of such determinations. A key consideration in reaching the opinion was that there was an imminent risk of serious injury.
An owner of a building may have concerns about the integrity of the structure and may want an engineer to “take a look” and let him know how bad it is. The owner may not be inclined, however, to alarm paying tenants of the structure with the bad news and could decide to “take the risk” and not perform any repairs until “later.” The Attorney General’s opinion concludes that the engineer’s duty to those at imminent risk of serious injury take precedent over the the owner/client’s interests to keep quiet about the problem. An engineer hired to make an inspection of a building to determine it’s structural integrity would do well to fully inform the client of the duty of the engineer to tell the occupants of the building or local building officials if any conditions are found that represent an imminent risk of serious injury where the owner does not intend to remedy the defective conditions.