Professional Liability Construction Engineering 380 Engineering Law

Professional Liability Claims against designers are probably the most common issue of prof. liab. In construction and engineering Design liability claims are increasing Owner/client suffers a loss or damage that should have (could have) been prevented by effective designs, and seeks to have that loss transferred to the designer

Professional Liability Usually a state-level jurisdictional process Type of harm- personal harm, property damage, economic loss Personal harm and property damage are usually torts, economic loss is a civil case Performance is contractual- specific performance standard is usually easy to establish and rarely the source of dispute

Professional Liability BUT- There is also a general or “professional standard” that is not set forth explicitly, and an outcome expectation (warranty) These standards are much more difficult to establish a priori and lead to much of the litigation

Professional Liability Other standards exist- –Satisfaction (100% money back guarantee) –Fitness standard (contractual establishment of the purpose for which the client is retaining the designer) –Quantitative standards (machine specs) –Qualitative standards –Cost (what will happen in the case of overrun)

Professional Liability Professional standard is based on what others with similar training and professional licensure would have done in a similar situation. Usually requires expert testimony to establish the standard. Codes can also be used to establish professional standards Professional standards can be lower than contract standard, but not vice versa (in general). Informed consent can protect to a degree.

Professional Liability Expert testimony- allows for judges (and sometimes juries) to get opinions from experts in areas of technical specialty outside their area of competence. The only time opinion is allowed as evidence There are some exceptions to the general rule requiring expert testimony- usually if the decision is “understandable” to the common person Can infer negligence through common sense

Professional Liability Admissibility- –Notification of other party –Statement of qualifications –Firsthand knowledge (must review the evidence –State registration is sometimes needed (or helpful) –Can be hard to find experts, convey the information simply, or determine specialty

Professional Liability Junk science and the introduction of “forensic experts” (professional expert witnesses) has lead to confusion and problems establishing the truth. HUGE problems with the validity and cost of the system, Increasing call for expert panel independent of the parties (friend of the court)