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
• BUTThere 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)