Page 155 - Forensic Structural Engineering Handbook

4.4 DESIGN AND CONSTRUCTION PRACTICES

An engineer may not be liable under theories of implied warranty and strict liability to
purchasers of a building for alleged defects in the design and construction of the building.
Absent privity between parties, real property purchasers cannot recover on warranty claim
against the original owner/developer of property. A nonsuit on implied warranty claim is
proper where there is no connection of privity between parties. 10
An implied warranty of fitness for purpose may apply to a construction contract where
four specific conditions exist: (1) The contractor professes to be competent to perform the
contracted work; (2) the owner has no particular expertise in the kind of work contem-
plated; (3) the owner furnishes no plans, designs, specifications, details, or blueprints; and
(4) the owner indicates a reliance on the experience and skill of the contractor, after mak-
ing known to the contractor the specific purposes for which the building is intended. 8,11
An example of where this decision was applied involved a contractor who designed and
installed an electrical system in a building which later was damaged by a fire caused by the
electrical system. The court applied the Dobler rule and found that an implied warranty of
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fitness for purpose existed in the design-install contract. Other cases touch on the applic-
ability of the implied warranty of fitness in contracts for design services, 7,13,14,15 but courts
have generally not been eager to apply that theory, especially when a claim of breach of
contract or negligence would be just as effective. 16,17

Strict Liability
A more stringent definition of liability applies to manufacturers. In the case of manufac-
tured products, current law imposes on the manufacturer strict liability for any injury
caused by the product. Strict liability exists if there is an injury; there does not have to have
been negligence for strict liability to arise. It is presumed that the manufacturer had a duty
not to introduce in the marketplace products which injure people who are using the prod-
uct as it was intended to be used. This duty is owed by the manufacturer to the ultimate con-
sumer, even though the consumer bought the product from someone other than the
manufacturer. Case law has applied strict liability to contractors or developers who build
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multiunit housing developments, and there have been attempts to apply the strict liability
standard to professional design services. 5
Strict liability also applies to those engaged in ultrahazardous activity. This applies to
an activity which by its nature is especially hazardous, yet is deemed to have some value
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for society. The activity will be “tolerated by the law,” but any injury caused by the ultra-
hazardous activity is the responsibility of the one engaged in it, without there having to be
negligence. In other words, if the activity is so hazardous that even exercising reasonable
care does not eliminate the risk, then there will be liability for injury regardless of the use
of reasonable care.

Negligence per se

Negligence of the engineer is presumed if the engineer violated a statute, the violation
caused injury that the statute intended to prevent, and the injured party was a member of
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the class of persons for whose protection the statute was adopted. Violation of a statute
setting forth a standard of conduct is negligence as a matter of law, or negligence per se.
Expert testimony is not required to establish negligence per se.
In a case involving a staircase built contrary to the building code tread width and height
requirements, resulting in costs for rebuilding the staircase to be in compliance with the
building code, the plaintiff’s claim of negligence per se was denied. The reason was that
the building code’s tread width and height requirements were intended to ensure safety in