(High) Winds of Change
BY EVA KAPLAN-LEISERSON
Floods submerging the Midwest, wildfires scorching California, hurricanes devastating coastal areas and islands. The news of extreme weather disasters seems unending lately. Data verify the increasing nature of these events. The number of disasters with billion-dollar damages has more than doubled recently, according to federal statistics released in February. Between 1980 and 2013, the US averaged about six such disasters a year. But over the last five years, more than 12 have occurred annually.
A growing consensus ties extreme weather events to warming temperatures. As the 2018 National Climate Assessment stated, “The impacts of climate change are already being felt in communities across the country. More frequent and intense extreme weather and climate-related events…are expected to continue to damage infrastructure, ecosystems, and social systems.”
As extreme weather events continue to increase, some have begun to ask whether the professional engineers’ standard of care is changing too. If they don’t take extreme weather into account, could they be held liable if damages occur? These questions don’t have easy answers, but they’re increasingly being debated.
The Engineers’ Standard of Care
The standard of care is commonly defined as “that degree of care which a reasonably prudent person should have exercised in the same or similar circumstances.” In light of climate change, the question becomes, if historical data is no longer a reliable predictor of weather effects on projects, and changes aren’t (yet) reflected in codes, how does that affect the professional engineers’ standard of care?
“Given the right set of circumstances, I can see people alleging that engineers didn’t meet the standard of care by not taking into account climate change issues,” says Nahom Gebre, P.E., risk management attorney at Victor O. Schinnerer & Co. (The company, which provides insurance and risk management for design professionals, is an NSPE benefit partner.) “I don’t think we’re too far off from a time when those allegations could be made.”
Meeting existing codes may not be enough for professional engineers to show that they met the standard of care, he says. A post on this issue on Schinnerer’s Risk Management Blog pointed out that building codes are based on historical data and not future risks such as climate change impacts. It’s reasonable, says Gebre, to expect the engineer to do more with the current state of scientific knowledge.
Randy Lewis is vice president of loss prevention and client education at AXA XL’s Design Professional Group. AXA XL is the property and casualty and specialty risk division of insurance company AXA, and Lewis was featured in the company’s newsletter article “Changing Climate, Changing Standard of Care?”
Although AXA has not yet seen claims alleging that the client didn’t take climate change issues into account, the company is predicting an increasing number of lawsuits against A/Es from clients asserting that projects should’ve been able to withstand extreme weather events.
As Lewis pointed out in the article, the standard of care is subjective, and it continues to evolve “to reflect prevailing scientific understanding, data, media reports, and our own experience.” For example, designing to a 100-year flood in some parts of Houston may not be reasonable after recent events there.
In May 2017, the Conservation Law Foundation, the Boston Society of Architects, and the Boston Green Ribbon Commission (a group of leaders supporting the city’s Climate Action Plan) sponsored two workshops bringing together a diverse group of industry professionals to discuss climate risks and legal implications. Climate Adaptation and Liability: A Legal Primer and Workshop Summary Report was released the next year. It emphasized the importance of adaptation strategies, stating that it’s now too late to avert significant climate change effects through mitigation. And the report examined in depth the questions of standard of care and potential liability.
A key point raised: Even if a practice is common, it doesn’t mean it meets the standard of care. In the 1932 landmark legal case The T.J. Hooper, a tugboat owner lacked a functioning radio and missed a weather report warning of an approaching storm. As a result, he lost cargo. Although most tugboats at the time also lacked radios, the appeals judge wrote, “There are precautions so imperative that even their universal disregard will not excuse their omission.” In other words, the report explains, “adherence to common industry practice does not foreclose liability.”
And if the harm was foreseeable, the authors continue—even if it hadn’t happened in the past—design professionals could be held responsible. For instance, in the 1960s, an Illinois appeals court found an engineer liable for negligently designing a cement pylon that collapsed onto a customer due to high winds, even though similar wind speeds had never before been recorded there.
The court ruled that the engineers could have used existing technology to predict the high winds. And that the engineers “failed to exercise that degree of care in the performance of professional duties imposed on them as members of a licensed profession which exists in large part to prevent harm to the public.”
The Responsibility Breakdown
But what about owners’ responsibility? Participants of the two workshops covered in the Climate Adaptation and Liability report were split on professional and legal obligations. Some said complying with codes is not enough because they set only minimum standards. The standard of care may mean going beyond codes and regulations. Others said design professionals can’t control everything in a project, and risk shouldn’t be assigned entirely to them. They provide services, not products.
In the event of harm due to extreme weather events, how is liability assigned? That really depends on the circumstances, says Gebre, but the way the legal system is designed, “people would try to recover from anybody who may be able to provide funds to make things right.”
As Lewis puts it, “If [an owner’s] expectations have not been met…everyone gets an invite to the dance, and they’re going to let the legal system sort it out.” Design professionals in a wide range of disciplines may be affected, he says.
There’s a certain logic to the engineer leaving the responsibility for decisions to the client, says Lewis. However, in reality, if an owner’s expectations aren’t met, they’re going to say to the engineer, “I trusted you. You’re the licensed professional; I’m just the [person] writing the check. How was I supposed to know? You should’ve told me.”
Lewis believes most responsibility will fall on the design and engineering community because owners can always argue, “I hired a professional” or some variation on “I didn’t know the floodplain maps were out of date, given climate projections. I expected my civil engineer to tell me that.”
So, what steps can professional engineers take to address these concerns?
The AXA XL article pointed to a recent study finding that A/Es were reluctant to start discussions about climate change effects with clients. The obstacles: conflicting signals about climate change from different levels of US government, additional expenses to ensure structures can withstand extreme weather, and the lagging nature of codes and regulations.
But Lewis emphasizes that design professionals need to have discussions with owners about both sustainability and resiliency.
Since different geographic areas may face different effects, from sea level rise to wildfires, droughts to tornados, the design professional should have a conversation with the project owner to discuss what climate-related risks he or she might encounter.
Discuss the issue as a trusted advisor helping the client to make the project successful, Lewis says. For example, “You’ve told me your expectation for this project is a 50- to 75-year lifecycle, and we are sitting right on the coast of Fort Lauderdale, so I am going to suggest adding elements of resilience to your project so you can achieve that goal.”
Both Lewis and Gebre emphasize the importance of documentation. Lewis says, put in writing to the owner what risks have been discussed and what the owner has decided. And, if necessary, “We are recommending you do X, but you are choosing to do Y.”
Gebre points to the need to clearly define the scope of services in contracts. If the specific services are clear, the allegation may still occur, he says, but the engineer would have a stronger defense. “If you can manage the scope, that puts you in a very strong footing to defend yourself in the event of an allegation.”
Another suggestion from Gebre: use consultants. Engineers can suggest to owners that they employ climate experts, for example, and rely on that information in performing services.
How Much Is Enough?
Dave Moeller, P.E., is president of Snyder & Associates, a multidisciplinary civil engineering, planning, and design firm serving clients throughout the Midwest and nationwide.
Moeller’s company designed a FEMA-funded flood protection system around three dorm buildings at Iowa State University following flooding in 1993. It was built one foot higher than that flood, which was more than three feet above the then 100-year-flood.
After flooding in 2010, Moeller was asked to revisit the project. Water had reached about three inches from the top of the flood wall, so he was called in to discuss raising the elevation. That’s when he first started to come to grips with the fact that things were changing, he says.
In fact, these days, he sees standards and requirements changing even faster than the project cycle. “There’s a good chance that when [a] project started, you had one set of standards. By the ribbon cutting, there’s different standards in place.”
That raises the question, “Now what?” he explains. “You know what you used to do is probably not adequate, but you don’t know exactly what [you] should be projecting.”
Cost-benefit and risk discussions with the client led to the suggestion of raising the wall another 18 inches, which would be two feet above the current 100-year flood. “They’re still wrestling” with that decision, says Moeller, due to cost.
“That ‘how much is enough’ question is really tricky,” says Moeller, but he learned the importance of discussing risk and resiliency with clients to set policy.
So, what is the current standard of care? That’s the million-dollar question, he says. As Moeller sees it, right now, it’s to question the appropriateness of the old rules of thumb, to not just blindly meet the minimum standards, and to have the resiliency discussions.
An Ethical Duty
While owners may focus on specific projects, Gebre says, the engineer can put climate issues on their radar and educate them to think bigger. He emphasizes that professional engineers have an ethical duty to think beyond issues of property and consider the risk to the public health, safety, and welfare.
NSPE member Jim D’Aloisio, P.E., is a managing partner at New York’s Klepper, Hahn & Hyatt, which focuses on structural engineering, landscape architecture, and building envelope systems. He writes and presents frequently on sustainability and climate change issues, and authored the 2018 PE article “Ethical Aspects of Engineers and Climate Change.”
D’Aloisio emphasizes the need for engineers to think beyond their own personal liability. It’s a “sad testament to the state of the profession” if that’s their first reaction, he says. “What engineers should be more concerned about is why this is occurring, and what they can do about it. That is the call of the engineering profession—to look out for the public interest, wherever that may lead them, rather than primarily looking out for their own self-interest.”
The PE stresses the need to consider the standard of care not just for climate change adaptation but also mitigation. He wants the engineering community to examine the carbon emissions of their projects and develop strategies to reduce them.
His take on the standard of care: “Not only is the awareness of climate change caused by human activities unprecedented in the history of modern civilization, but to expect engineers to design projects beyond what codes and standards require for a project would be equally unprecedented.”
He believes engineers need to comply with relevant standards and codes, and the burden of having to go beyond such requirements shouldn’t be borne by individual engineers. The changes aren’t linear, he points out—rather, they’re causing increasing variability—so it’s difficult to adjust specific design parameters.
Engineers should keep an eye on where model codes are going, he says, even if changes might be years away.
Both D’Aloisio and Gebre emphasize the need for design professionals to get involved in a larger way, such as participation on code-writing committees, to ensure the most updated information is available.
As the Climate Adaptation and Liability report says, “More certainty, predictability, and clarity around the appropriate standard and level of response is needed, which may mean more definitive codes.”
Engineers can also play a role in influencing regulations and government policy.
Lewis notes the opportunity that professional engineers have to serve as trusted professionals, helping owners design in resilience.
Part of that means educating themselves. Arthur Schwartz, NSPE’s deputy executive director and general counsel, recommends that all professional engineers be continually mindful of these ever-changing challenges; make a serious effort to stay on top of them through continuing education, technical journals, and self-study; and apply this professional knowledge to their engineering services. “The standard of care is not simply what a professional engineer may have known,” says Schwartz, “but also what the professional engineer should reasonably have known.”