Orange County Branch Newsletter

June 2012

Law & CE

What's Expected? – The Basics of an Engineer's Standard of Care


There is no perfect set of plans, no perfect set of specifications, and no reason to pull out your checkbook or waive your fee when your services were not perfect and a change order is needed on a project.  “Standard of Care” is a legal term of art that is a measure of the degree of prudence and caution required of an individual in a specific situation.  What makes the concept so elusive is that it can change depending on the circumstances.

California courts have repeatedly held that project owners cannot expect design professionals to guarantee satisfactory results:

"The engineer's undertaking in respect to the plans he prepares is comparable to that of an architect, which in the absence of a special agreement is not an absolute guaranty that satisfactory results will ensue. … Those who hire such persons are not justified in expecting infallibility, but can expect only reasonable care and competence. They purchase service, not insurance." Bonadiman-McCain, Inc. v. Snow (1960) 183 Cal. App. 2d 58, 70.

As an initial matter, in order for someone to successfully recover against an engineer for negligence, he must show that the engineer fell below the standard of care applicable to the engineer on that project.  Unless the contract the engineer enters into raises the standard of care, California law only requires that the engineer perform to the level of the average, reasonable engineer practicing in the same locale at the same time.

The California legislature has sought to protect engineers and other design professionals from frivolous lawsuits by instituting Code of Civil Procedure § 411.35.  This statute requires an attorney to consult with an engineer to obtain an opinion prior to filing a lawsuit that the engineer he intends to sue was negligent in his services.  Absent a pre-lawsuit declaration by the attorney that he has obtained such an opinion, any lawsuit against an engineer related to his negligent professional services should fail as a matter of law.

Should a negligence claim against an engineer lead to a trial or arbitration, the trier of fact will be asked to make the final determination of whether the standard of care was met.  In doing so, they should be provided with the following instruction:

“An engineer is negligent if he/she fails to use the skill and care the reasonably careful engineer would have used in similar circumstances.  When you are deciding whether the engineer was negligent, you must base your decision on the testimony of expert witnesses, including the defendant engineer, who have testified in this case.” Modified Judicial Council of California Civil Jury Instruction “CACI” 600.

In addition, the jury should also receive the following instruction:

“An engineer is not necessarily negligent just because his/her efforts are unsuccessful or he/she makes an error that was reasonable under the circumstances.  An engineer is negligent only if he/she was not as skillful, knowledgeable, or careful as other engineers would have been in similar circumstances.” Modified CACI 602.

The bottom line is that according to California law, an engineer cannot be found liable for damages under a negligence theory until the judge, jury, or arbitrator is convinced by the testimony of an engineer that the ordinary, reasonable engineer would have performed better under the same set of circumstances.  Even if additional costs result from a small miscalculation or conflict in the instruments of service, unless that error or omission causes an engineer’s services to fall below the standard of care, the engineer should not be held responsible for those added costs. 

Contact either Michele L. Gamble, Esq. or Christian E. Bredeson, Esq. if you would like to discuss further.


Michele L. Gamble, Esq.                                  Christian E. Bredeson, Esq.
750 The City Drive, Suite 400                            750 The City Drive, Suite 400
Orange, CA 92868                                           Orange, CA 92868
Phone:  (714) 823-4100                                    Phone:  (714) 823-4100
Fax:  (714) 823-4111                                        Fax:  (714) 823-4111
[email protected]                              [email protected]

www.ccmslaw.com                                                      

Nothing contained within this article should be considered the rendering of legal advice.  Anyone who reads this article should always consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.

 

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