The Engineer's Standard of Care: Part 2
Last week’s blog posting was a brief introduction to the standard of care. It noted that the standard of care doctrine applies to engineers, unless voluntarily relinquished by agreeing to provide a client with an express warranty or guarantee of something exceeding “services rendered with the degree of learning and skill ordinarily possessed by a reputable equivalent professional practicing under similar circumstances, at the given time and in a similar location.”
An express warranty or guarantee specifies an outcome. Say an engineer was presented with an owner's contract that says the plans and specifications will be "suitable for the use intended by the Owner"—an admirable, but often unattainable goal. Signing the contract would mean the engineer agreed to perform better than a reputable equivalent professional practicing under similar circumstances; and the engineer would have essentially guaranteed the project’s outcome. What if there are unforeseen conditions, or a labor strike, or if a regulation is enacted that adversely affects the project? Can the owner say that you breached the contract? Probably. Can the engineer lose such a suit? Maybe. Will the engineer’s professional liability carrier make an indemnity payment? Probably not. Will you survive as a firm? I hope so.
To those unfamiliar with risk avoidance, there are some words—words used in everyday life—that design professionals should be wary of, even if they don't sound too harsh. If any of these words appear in the owner's contract, object. And don't ever put them in your proposals or contracts. I wouldn't even use them in letters or promotional material, unless they are very explicit as to the scope of meaning. What are some of the words on the alert list?
all
every
insure
ensure
represent
warrant
guarantee
declare
certify
highest
complete
fit for the intended purpose
accurate...
and others.
What would be an example of an engineering-type express warranty? How about "Engineer will perform all work necessary to obtain a major subdivision Planning Board Approval." If an engineer signed a contract with this language, the engineer would be making an express warranty, even though he or she knows that approval cannot be guaranteed. The engineer really should have agreed only to "perform services generally required for application to the Planning Board for subdivision."
Although most engineers strive to furnish adequate services with successful outcomes for their clients, engineers must recognize and understand the concept of standard of care. It is a powerful common-law defense. It is foolish to relinquish a universally accepted concept because you just didn't know how to avoid express warranties or guarantees in the contract language.
NSPE position statement 1750 covers guarantee/warranty provisions and other contractual provisions that attempt to shift risk to the engineer from the parties in the best position to assume those risks.