December 12, 2013
COMMUNITIES: PRIVATE PRACTICE
BY NAHOM A. GEBRE, ESQ., P.E.
As a client, you expect that the engineer you engage to perform services will do so in a competent and professional manner. If you are not satisfied with the services, you have the right to make a claim against the engineer in court. In the U.S. legal system, a judge or jury must decide whether the engineer violated the professional standard of care. A violation of the standard of care is known as negligence.
As a client alleging that the engineer was negligent, you have to show four elements: duty, breach of duty, proximate causation, and damages. The engineer's duty is known as the standard of care; it is most commonly defined as "that degree of care which a reasonably prudent person should have exercised in the same or similar circumstances." If the person's conduct or performance does not meet the standard, then he may be responsible for injuries or damages that result from that conduct. For professional services, the performance standard that is expected of professionals is to perform with the degree of skill, care, and diligence that would be expected of members of the same profession, practicing in the same or similar locality, and in accordance with that profession's present state of the art.
Clients need to understand that determining the appropriate standard of care requires an analysis of the all pertinent facts of the case. You should be aware that the standard of care does not require the engineer to produce a "perfect" plan. Defects or omissions may not constitute a departure from the standard of care, even if they were the proximate cause of the damage or injury. The issue that has to be resolved is whether the defect or omission constitutes a failure to perform services the way a similarly situated professional would have under the same or similar circumstances. Establishing a breach of duty often requires expert testimony by an individual who has similar experience and provides their opinion on the matter. In a negligence claim that is actually litigated in court, both sides typically present expert testimony that supports their case, and the judge or jury considers the testimony when deciding whether there was negligence.
While an engineer has a duty to possess and to use the knowledge, skills, and judgment of others of ordinary ability, unsatisfactory results are not necessarily evidence of a lack of skill or proper care. The law does not expect nor require perfection. An engineer is not liable for unsatisfactory results, so long as the course of action taken has substantial support as being proper practice according to the profession. In other words, if an engineer has provided services in a manner that meets the standard of care, a judge or jury cannot find the engineer liable for negligence. Engineering practice often involves matters of judgment, and the engineer is not automatically liable if he makes a mistake or error in the exercise of that judgment. If, for example, an engineer selects one of two or more courses of action, each of which has substantial support as proper practice by the profession, the engineer will not be adjudged to be negligent, even if the course chosen produces a poor result.
However, an engineer who departs from standard engineering practice is not excused from the consequences by stating that the departure from standard practice was an exercise of judgment on their part. If the engineer's judgment causes them to do what standard practice forbids, the engineer will be deemed negligent. The engineer is also negligent if their judgment causes them to omit an item that is required by standard engineering practice.
Proximate cause is defined as "that which, in a natural and continuous sequence, unbroken by an efficient intervening cause, produces injury, and without which the result would not have occurred. The proximate cause is the primary or moving cause that the act or omission played a substantial part in bringing about or actually causing the injury or damage." For the engineer to be held liable for negligence, a connection between the breach of duty and the damages suffered must be shown. Although this is easily stated, proving that the breach of duty did indeed cause the damages can be a challenge.
Ultimately, as a client you should expect the engineer you engage to perform professional services in a nonnegligent manner. It is important that you understand the performance standard that is expected of the engineer so that you can reference the appropriate standard in the contracts that you use to set the terms and conditions of the professional engagement.
Nahom A. Gebre, Esq., P.E., is a risk management attorney for Victor O. Schinnerer & Co. Inc. CNA/Schinnerer's professional liability insurance program has been commended by NSPE since 1957.
The original version of this article was written by NSPE's former general counsel Milt Lunch.
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