November 2017 – Law and Civil Engineering
THE LAW AND CIVIL ENGINEERING – NOVEMBER 2017 NEWSLETTER
Liability Without Fault Does Not Apply to Engineers
by Eugene Bass
Strict liability is the legal responsibility for damages, or injury, even if the person found strictly liable was not at fault. In a case involving a water system that failed to supply sufficient water to extinguish a house fire, the property owner attempted to argued that the design engineer should be strictly liable for the damages. The court disagreed.
A fire completely destroyed a home and some trees on the property of the plaintiff. The damage was so extensive because of an inadequate supply of water from the water distribution system. The home owner sued the developer who installed the water system and the engineer. The engineer was sued for negligence in the design, engineering and construction of the water system. The engineer was also sued, along with the developer, on the theories of strict liability (liability without fault) and negligence.
In defending the suit, the engineers attempted to claim that they enjoyed the same immunity from suit that the water company had as a water supplier. The court disagreed with this argument, however, holding that the engineer who prepared the design for the water system did not become a water supplier and hence, did not benefit from any immunity that would accrue to the water company.
The Court did find that the developer could be strictly liable for damages caused by the fire noting that the water system was constructed for the purpose of protecting the properties from fire. The engineer, however, could not be held was not liable on the theory of strict liability.
The Court stated that the engineer rendered a professional service and was in no sense analogous to manufacturers who place products on the market and who are, therefore, in the best position to spread the cost of injuries resulting from defective products as are developers. Citing a prior case, the Court noted that “…the well settled rule in California is that where the primary objective of a transaction is to obtain services, the doctrines of implied warranty and strict liability do not apply.” From another case, it was noted that the engineer “…was not a seller of property who obligated himself as part of his bargain to convey property in the condition represented. The amount of his fee and the fact that he was paid by the hour also indicate that he was selling service and not insurance. Thus the general rule is applicable 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.”
Not all states are as kind to engineers as California .