June 2021 – Law and Civil Engineering
THE LAW AND CIVIL ENGINEERING – JUNE 2021 NEWSLETTER
Certification and the Standard of Care
by Eugene Bass
Occasionally, an engineer may be called upon to produce a “certification.” Questions may arise as to the effect of the certification and whether the act of certification results in an expansion of the liability potential otherwise applicable to the engineer.
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. As with any other “expression of opinion” the engineer must take care that the opinion is rendered in a non-negligent manner. In performing professional services for a client, an engineer has the duty to have that degree of learning and skill ordinarily possessed by reputable 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 his or her profession practicing in the same or similar locality under similar circumstances, and to use reasonable diligence and his or her best judgment in the exercise of his professional skill and in the application of his learning, in an effort to accomplish the purpose for which he or she was employed. If the engineer holds himself or herself out to be a specialist, he or she must 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.
Perfection is not required in the performance of engineering services but they must be performed non-negligently. A warranty is a promise. There is no warranty that applies to the performance of engineering services other than that those services will be performed non-negligently. But again, negligence is defined relatively. There is also no implied warranty that the product of the engineer will be suited for its intended use, only that product will be produced non-negligently. Care must be taken in contracting for engineering services that the engineer does not guarantee perfection or warrant that the engineering product will accomplish a specified objective thus contractually becoming obligated to a higher than “non-negligent” standard of care. This article is intended to provide general information regarding legal issues. It is not to be relied upon as specific legal advice or in place of the need to seek competent legal advice on specific legal matters.
This article is intended only to provide general information regarding legal issues. It is not to be relied upon for legal advice. Contact your attorney for advise and guidance on general and specific legal issues.