March 2014

LEGAL BEAT
Responsible Charge, Prompt Pay, Standard of Care

BY ARTHUR SCHWARTZ, DEPUTY EXECUTIVE DIRECTOR AND GENERAL COUNSEL

Q

 I am a professional engineer with a small engineering firm in a rural area. Recently, an unlicensed individual prepared a set of engineering documents using design software and asked me to review the work and sign and seal it in order to submit to a public authority for approval. Is this acceptable? (Oklahoma)

A

 Your question raises a fundamental issue relating to the definition of “responsible charge.” According to the Oklahoma State Board of Licensure for Professional Engineers and Land Surveyors, the intent of the Oklahoma Professional Engineering Act is not met if an unlicensed person independently performs engineering work, which is then reviewed, signed, and sealed by a professional engineer. Instead, the professional engineer must personally direct the unlicensed person, with the unlicensed person’s work being performed concurrently with the professional engineer’s direct supervision.

The board notes that many unlicensed individuals believe they are capable of designing or performing engineering services simply by, for example, using design software tools. The fact that a professional engineer may be willing to assume the risk of signing and sealing documents generated from those tools does not equate to being in responsible charge as required under the Oklahoma Professional Engineering Act, which  was established to protect the public health and safety.

Q

 I am a professional engineer in private practice and have an outstanding accounts receivable from a company that retained my firm in connection with preparation of a site plan in a neighboring state. The project ran into financial difficulties and my firm has not been paid for its services. I know that many states have prompt pay laws. Are professional engineering services generally covered under such laws? (Nevada)

A

 Whether professional engineering services are covered will depend on the precise language in the statute. In a recent decision, an Arizona appeals court ruled that the state’s prompt pay act did not apply to architectural services because the specific language in the act only afforded prompt pay protection to “contractors” performing under “construction contracts.” The court found that the Arizona legislature had carefully established a clear distinction in its statutory definition of a “construction contract” and an “architect-engineer professional service contract.” Having carefully carved out in the law a specific definition for an “architect-engineer professional service contract,” the court concluded that the Arizona legislature was aware of the distinction when it later enacted the state’s prompt pay act.

Q

 I know that there are generally fines and civil penalties associated with failing to meet the standard of care in performing engineering services, but are you aware of any cases where design professionals have been found criminally liable for engaging in negligent conduct? (Florida)

A

 Yes. In a recent California case, a foreign architect, not licensed in California, was charged with involuntary manslaughter after a firefighter died during a fire at the architect’s home. The unlicensed architect had designed his home and supervised its construction less than a year prior. A post-fire investigation identified gross negligence and serious building code violations that included the use of combustible materials for an indoor fireplace that was manufactured only for outdoor use. The investigation also determined that several fireplaces, including the one where the fire started, were installed after final inspection of the residence —despite the unlicensed architect’s statements to the inspectors that no fireplaces were planned as part of his design.

In an unprecedented action, the local district attorney charged the unlicensed architect with involuntary manslaughter and held him criminally responsible for the firefighter’s death. The unlicensed architect pleaded no contest to the manslaughter charge and was sentenced to one year in jail and three years of probation, with the expectation that he will be deported upon his release from jail. While the facts in the case are somewhat unusual and unique, they illustrate how prosecutors might respond in some instances when those who design buildings and other structures fail to meet the standard of care.

Responses are based on questions posed to NSPE Legal Counsel Arthur Schwartz.

Are you an NSPE member with a legal question for this column? Send it to Arthur Schwartz, [email protected].