Page 154 - Forensic Structural Engineering Handbook

STANDARD OF CARE 4.3

construction firm?”—must have been answered in each case heard in the Babylonian court.
It may have been that the fact of a collapse was enough to pin responsibility on the builder,
in the manner of strict liability. In that case, Hammurabi’s court would need no testimony
as to whether the house was built in accordance with standards of the time, or whether the
builder was any less competent than other builders.
Today, engineers have a duty to provide their services in a manner consistent with the
standard of care of their professions. Part of the definition of the standard of care of a pro-
fessional is that level or quality of service ordinarily provided by other normally competent
practitioners of good standing in that field, contemporaneously providing similar services
4
in the same locality and under the same circumstances. As will be described below, a more
complete description of the duty of an engineer includes the application of “care,” “skill,”
“best judgment,” and “reasonable diligence.”
An engineer’s service need not be perfect. Because the engineer, when providing pro-
fessional services, is exercising judgment gained from experience and learning, and is usu-
ally providing those services in situations where certain unknown or uncontrollable factors
5
are common, some level of error in those services is allowed. When you hire an engineer,
you “purchase service, not insurance,” so you are not justified in expecting perfection or
infallibility, only “reasonable care and competence.” 6
The fact that an engineer makes a mistake, and that mistake causes injury or damage, is
not sufficient to lead to professional liability on the part of the engineer. In order for there
to be professional liability it must be proved that the services were professionally negligent,
that is, they fell beneath the standard of care of the profession. When you hire an engineer,
you are accepting the risk, and the liability, of that professional’s making a mistake similar
to mistakes any other normally competent engineer makes.
The standard of care is not what an engineer should have done in a particular instance,
it is not what others say an engineer would do, or what they would have done. It is just what
competent engineers actually did in similar circumstances.
Ordinary liability, as opposed to professional liability, is the failure to use reasonable
care which any reasonable, nonprofessional person would. In cases where a structural engi-
neer is accused of ordinary negligence, the testimony of an expert structural engineer is not
required. The people sitting on the jury don’t need help identifying that kind of negligence.
Other sources of liability which a structural engineer may face include warranties either
express or implied, and negligence per se in a case where the engineer violated a code sec-
tion or law. The concept of strict liability may also apply to a structural engineer in a situ-
ation where the engineer is providing a product.

Warranties
Professional liability is different from liability arising from a warranty. A warranty is a stip-
ulation that a fact in relation to the subject of a contract is as it is stated or promised to be
in the contract. The warranty may be express, in which case it is written or stated as such
in the contract; or it may be implied. Implied warranties of fitness for purpose, mer-
chantability, and warranty of title are recognized in the Uniform Commercial Code. A war-
ranty of fitness for purpose is implied in contracts for construction based on case law. 7,8
Implied warranties of fitness for intended purpose have been applied to professional
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design service contracts, but courts have not been consistent in their rulings. Some have
ruled that the only warranty implied is the warranty that the services are provided without
professional negligence. (To be clear as to warranties, contracts for professional design ser-
vices should spell out precisely what the designer warrants. A prudent engineer will place
in the contract for engineering services a statement to the effect that the only express or
implied warranty in the contract is that the services will be provided within the standard of
care of the profession. To warrant otherwise may expose the designer to uninsurable risks.)