Page 159 - Forensic Structural Engineering Handbook

4.8 DESIGN AND CONSTRUCTION PRACTICES

mathematical error, a column from an upper floor neglected down below, and the omission
of a portion of a building’s mass in estimating the seismic load are probably all too famil-
iar errors to most practicing structural engineers. Careful checking of the work, adherence
to verified design procedures, and a clear understanding of what “feels right” despite what
the calculations say, are ways to keep these types or errors small and reasonable.

Identifying Error

A trier of fact (judge or jury) has to determine the standard of care and whether an engineer
has failed to achieve that level of performance. The trier of fact does so by hearing expert
testimony. People who are qualified as experts express opinions as to the standard of care
and as to the defendant engineer’s performance relative to that standard. (This is one of the
few instances when opinion can be entered as factual evidence.) The trier of fact weighs the
testimony from all sides and decides in each case what the standard of care was and whether
the defendant met it.
Jury instructions have been standardized. In the Book of Approved Jury Instruction,
23
BAJI 6.37, “Duty of a Professional” reads:
In performing professional services for a client, a [structural engineer] has the duty to have that
degree of learning and skill ordinarily possessed by reputable [structural engineers], practicing
in the same or similar locality and under similar circumstances.
It is [the structural engineer’s] further duty to use the care and skill ordinarily used in like
cases by reputable members of [the structural engineering] profession practicing in the same or
similar locality under similar circumstances, and to use reasonable diligence and (the defendant
structural engineer’s) best judgment in the exercise of professional skill and in the application
of learning, in an effort to accomplish the purpose for which (the structural engineer) was
employed.
A failure to fulfill any such duty is negligence.

Four key items in this instruction can serve as the definition of the standard of care of
structural engineers:
1. Have learning and skill ordinarily possessed by reputable structural engineers, practic-
ing in the same or similar locality and under similar circumstances
2. Use care and skill ordinarily used in like cases by reputable members of the structural
engineering profession practicing in the same or similar locality under similar circum-
stances
3. Use reasonable diligence and best judgment in the exercise of professional skill and in
the application of learning
4. In an effort to accomplish the purpose for which the structural engineer was employed
A forensic structural engineer asked to opine as to the performance of a structural engi-
neer relative to the standard of care will have to understand the error that allegedly led to
the claim. If the error is within the realm of errors made by normally competent structural
engineers using care, skill, reasonable diligence, and that engineer’s best judgment, then
the error is not necessarily an instance of professional negligence. The forensic structural
engineer providing expert testimony should identify the error of the defendant and place it
in context of error in general. Was the source of the error the engineer’s failure to use dili-
gence or reasonable care? Did the defendant structural engineer have, and use, the learning
and skill ordinarily possessed by reputable members of the profession practicing in similar
circumstances? Did the defendant fulfill the purpose of that job?