| Risk Management Tips for Structural Engineers |
August 18, 2006 |
Responsibility without Authority is a Dangerous Situation
The privilege to practice engineering carries with it certain responsibilities. The right to reject the contractor’s application for payment for certain specified reasons carries with it the duty to do so only when those reasons exist. The right to stop work or reject defective work carries with them corresponding duties. Your contracts should be careful to see that a right is not assigned to a party that is not properly trained and prepared to carry out the corresponding duty.
The following are quotations from court decisions that, however somewhat dated, are helpful in understanding the limits of professional responsibility.
“the general rule is applicable that those who sell their services for the guidance of others in their economic, financial and personal affairs are not liable in the absence of negligence or intentional misconduct…Those who hire experts…are not justified in expecting infallibility, but can expect only reasonable care and competence. They purchase service, not insurance.” Gagne v. Bertrum, 43 Cal 2nd 481 (1954).
“…those who hire experts for the predominant purpose of rendering special skills cannot expect infallibility. Reasonable expectations, not perfect results in the face of any and all contingencies, will be ensured under a traditional negligence standard of conduct. In other words, unless the parties have contractually bound themselves to a higher standard of performance, reasonable care and competence owed generally by practitioners in the particular trade or profession defines the limits of an injured party’s justifiable demands…” Milau v. North Avenue Development, 398 NYS 2nd 882 (1977).
Be Familiar with the Terms and Conditions of the Agreement with the Client
It is the agreement under which you work. It is the source of many of your rights, duties, principles and responsibilities during design and construction. Equally important is to become familiar with the terms and conditions of the agreement between the owner and contractor for the project you have designed…even though you are not a party to that contract. The engineer’s duties and responsibilities are probably mentioned in that agreement and should be reviewed for consistency with your primary agreement.
Engineer can Select the Subcontractors
Although it is generally recognized that contractors should be entitled to employ subcontractors, suppliers etc of their own choosing, in many projects the owner and engineer may want to retain a degree of control over the contractor’s selection. In this case language should be inserted in the contract that requires the contractor to substitute acceptable subcontractors, suppliers etc when those being used by them are not acceptable to the owner and engineer.
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