THE LAW AND CIVIL ENGINEERING – JULY 2019 NEWSLETTER
More Practice TIps
by Eugene Bass
Beware of new technologies. It is not unheard of for a product representative to try to convince a design engineer to specify a new product that the will prove advantageous for the product manufacturer and claim to be advantageous for the client. The engineer may not be familiar with the product but the manufacturer’s representative will undoubtedly have plenty of data supporting the appropriateness and reliability of the product. The traditional approach to use conservative designs and techniques and that have been proven through past experience will be challenged by the representative’s presentations and assurances that the new approach or product will be superior to the tried and proven old and likely at a considerable cost saving.
If the design engineer is convinced that the new technology will be a good choice, despite the absence of a proven track record, steps should be taken to include the owner in the decision process since the owner would stand to benefit the most from the use of the new technology. In addition, warranties and hold harmless commitments should be obtained from the manufacturer in favor of the owner and design engineer to provide protection and compensation in case the technology fails to meet expectations. However, it should always be borne in mind that any warranty or hold harmless will only be as good as the future financial ability of the manufacture.
When a contractor encounters field conditions that were not anticipated, claims for extra compensation usually result. The owner, may feel that the engineer should have anticipated the encountered conditions in the design of the project and want to look to the engineer to pay the resulting additional costs. The obvious answer to the the issue of avoidance of encountering unforeseen conditions is to conduct a pre-design investigation that reveals all conditions. The obvious problem with this approach is that it can cost too much money. Where should the line be drawn? The level of investigation must not fall below the standard of care. But, how much more investigation should be conducted to reduce the possibility of major surprises. More investigation will cost more. The solution will involve a balance where the owner has been made aware of and has accepted the risks and limitations in the extent of pre-design investigation through written communications during the design process and appropriate contractual disclaimers.
Providing construction site services can also be a rich source of potential liability for the engineer. Contractors can claim that the engineers caused damages due to delays and extra work arising both from design errors and from decisions made during construction. Special care should be taken to establish and promptly follow set procedures for processing changes and requests for information. The failure of the engineer providing construction services to detect a contractor’s deviation from the plans and specifications can also generate liability to the owner. The contract for construction phase services must include adequate fees to fund the level of services necessary to properly observe the construction and should include provisions to realistically define and allocate risks.
Beware, The Standard of Care for an Engineer can be Expanded by Contract
by Eugene Bass
There can be clauses in contracts that result in modification of the standard of care that normally applies to the practice of engineering. These clauses should be recognized, understood and negotiated out of the agreement, if possible, and only accepted if the engineer is willing to assume the extra, and possibly uninsurable, risk that is involved.
Contracts can require that the engineer issue “certifications.” A certification can result in an expansion of the standard of care, depending upon it’s scope. The laws of the State of California have addressed the use of the words “certify” and “certification” by professional engineers. The law states, “The use of the word “certify” or “certification” by a registered professional engineer in the practice of professional engineering or land surveying constitutes an expression of professional opinion regarding those facts or findings which are the subject of the certification, and does not constitute a warranty or guarantee, either expressed or implied.” However, your contract can expand the scope of the certification to virtually include a warranty or guarantee. Certification provisions should be carefully reviewed to be sure such expansion of scope is not present.
The standard of care applicable to the practice of engineering provides that the engineer owes the client the duty to have that degree of learning and skill ordinarily possessed by reputable civil engineers, practicing in the same or a similar locality and 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 in the same or a similar locality under similar circumstances. Also, 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.
One purporting to be a specialist in a particular field of engineering is required to have the knowledge and skill ordinarily possessed, and to use the care and skill ordinarily used, by reputable specialists practicing in the same field and in the same or a similar locality and under similar circumstances.
The standard of care applicable to an engineer can only be determine through the testimony of an expert engineer who has demonstrated knowledge of the standard of care applicable to reputable engineers practicing in the same or a similar locality and under similar circumstances.