Sources of an Engineer’s Duty
Have you ever been on the defendant’s side of a lawsuit as an engineer? I hope not, but if you have, you probably learned about the four proofs plaintiffs must make to win. Many of you have not been unfortunate enough to have been educated through the school of hard knocks, so I will try to give you a basic education in this blog posting.
Four Essential Proofs
In order for a plaintiff to prevail in a malpractice (negligence) suit against an engineer, there are four essential proofs:
- Engineer had a duty to the plaintiff;
- Engineer breached the duty;
- Plaintiff suffered damages; and
- Breach of duty was the proximate cause of the damages.
Sources of an Engineer’s Duty
How does duty arise? Obviously, we can start with the contract. You will have established the scope of services, fees, and understandings of the parties in this document. Additionally, duties arise from three other sources:
- Laws, ordinances, regulations, and codes (whether known to you or not);
- Ethical and professional responsibilities; and
- Common law.
These four basic sources of duty establish your duties, not only to the parties to the contract, but also to the public at large, at least to the extent that they may be injured by your work product. Common causes of liability arising out of breach of duty include:
- Code violations;
- Violations or failure to comply with laws, regulations, and permitting processes;
- Unlicensed practice;
- Errors and omissions;
- Actions of subconsultants;
- Failure to meet appropriate standard of care;
- Breach of contract; and
- Breach of warranty or guarantee.
A key document for establishing duty is the professional services contract. This is why written contracts are so vitally important. Not only will they set forth the scope of services for which the client has contracted, but properly worded, they will handle vital peripheral interests. For instance, a good contract will not offer any guaranties or warrantees other than, perhaps, the duty to perform services in accordance with the locally recognized standard of care (here and here).
The possibility of violating laws, regulations, and permitting processes, as well as codes is an ever-present pitfall. To the extent possible, engineers need to keep abreast of the areas of those topics that are most relevant to the professional services being performed because they are not static and are subject to revisions and updates. The case for continuing professional competency training could not be more relevant than in this area.