ASCE Member Insurance Blog

Engineers’ Duties Outside of a Written Contract: Avoiding Pitfalls Through Proper Documentation

Posted on 3/9/2017 by ASCE Insurance in Liability Contracts Legal Documentation
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As with any profession, a contract for engineering services specifies the terms of agreements, services to be exchanged, deadlines, and estimated costs. It also outlines the specific duties of the project's engineering firm.1 However, as a project progresses, its scope—and thus the engineering firm's duties—can expand. As an engineer, it's important to be aware that taking on duties outside those outlined in your contract may increase your liability.2 To understand how, consider the real-life scenario described below.

By Sarah A. Johnson, Esq.

In Donatelli v. D.R. Consulting Engineers, Inc., the Supreme Court of Washington found that there was a genuine issue of fact as to the defendant engineering firm's duties.3 The case involved claims of breach of contract, violations of the Consumer Protection Act, negligence, and negligent misrepresentation made by the plaintiff developers against the defendant engineering firm.4

The engineering firm's written contract with the developers outlined six phases of engineering services (not including project management) for an estimated fee of $33,150.5 However, according to the developers, the engineering firm assumed a management role over the project; worked closely with the contractors, builders, and vendors involved in the project; and charged the developers $120,000 for its services.6

The Supreme Court of Washington found that it was unclear if the engineering firm assumed additional duties outside of the contract, as the contractors involved in the project provided inconsistent affadavits. Some stated that they witnessed the engineering firm advising and directing subcontractors on the day-to-day problems at the site; however, others stated that the engineering firm coordinated different parts of the job.7

The court also found that the engineering firm's written contract did not specify project management services. Furthermore, the discrepancy between the estimated fee and the amount actually charged by the firm confirmed that the engineering firm performed additional work not included in the written contract.8 As a result, the court concluded that there was a genuine issue of material fact as to the engineering firm's professional obligations with respect to the project.9

The Donatelli case illustrates the importance of documenting changes to a project's scope and/or services with a new written contract or amendments to the original contract. If steps are not taken to document the scope of your engineering firm's work, it will likely become an issue of fact for a judge or jury in any subsequent litigation. Best practices do not leave this important issue of fact to the whims of a jury or judge who may ultimately decide in favor of the plaintiff because they like the plaintiff, feel sorry for the plaintiff, or quite simply believe the plaintiff over you.

To further protect your engineering career, if you observe an unsafe condition or defective construction, report it to the client as soon as possible, and document the report in writing via correspondence, email, or some other form of written communication that is acknowledged by the client. This best practice holds true even if you don't have safety duties or construction observation duties. While the case law regarding an engineering firm's duty to notify its client of a safety concern actually observed by the firm is not always clear, some jurisdictions have referenced a moral duty to provide a warning about the unsafe condition on the part of engineers.10 Courts will also look for any reason to hold a design professional, such as an engineer, responsible for a defective condition of which he or she had knowledge, even if he or she had limited construction observation duties.11

In most circumstances, you can reduce your risk of legal liability through proper documentation. Make sure to amend your contract if a project's change in scope requires you to take on additional duties. Furthermore, be sure to provide written warnings to clients when an unsafe condition or defective construction is observed.

Want to hear more from Sarah? Check out her webinar, Calculating Your Professional Risk(s): The fewer moving parts, the better, where she discusses best practices for contracts. You can find her webinar and others in the sidebar of the ASCE professional liability page under "View Our Webinars."

Citations

1Thompson v. Gordon, 948 N.E.2d 39, 51 (Ill. 2011); Frampton v. Dauphin Distribution Servs. Co., 648 A.2d 236, 328 (Pa. Super. Ct. 1994); Wartenberg v. Dubin, Dubin & Moutoussamy, 630 N.E.2d 1171, 1174 (Ill. App. Ct. 1994).

2Frampton, 648 A.2d at 328; Wartenberg, 630 N.E.2d at 1174.

3Donatelli v. D.R. Strong Consulting Engineers, Inc., 312 P.3d 620, 624-25 (Wash. 2013).

4Id. at 621.

5Id. at 622.

6Id.

7Id. at 625.

8Id.

9Id.

10Yocum v. City of Minden, 649 So.2d 129, 132-33 (La. Ct. App. 1995) (acknowledging a moral duty to warn of an unreasonably dangerous situation but only where the engineer has actual knowledge of the dangerous situation); see also, Pulitano v. Thayer Street Assocs., Inc., No. 407-9-06 Wmcv, 2008 Vt. Super. LEXIS 26, at *8 (Super Ct. April 30, 2008) (quoting Northern Ind. Public Serv. Co. v. East Chi. Sanitary Dist., 590 N.E.2d 1067, 1077 (Ind. Ct. App. 1992) (“[a]ll persons on the construction site should be encouraged to report or act upon any observed hazards without the apprehension that if they do so, they will have assumed safety duties relative to the whole job site”).

11See Watson, Watson, Rutland/Architects, Inc. v. Montgomery County Bd. of Educ., 559 So.2d 168, 174 (Ala. 1990) (finding that an architect has a legal duty under such an agreement to notify the owner of a construction defect known to the architect); see also, Bd. of Educ. of the Hudson City Sch. Dist. v. Sargent, Webster, Crenshaw & Folley, 146 A.D.2d 190, 196 (N.Y. App. Div. 1989) (finding that where “an architect discovers a defects in the progress of the which the owner, if notified, could have taken steps to ameliorate, the imposition of liability upon the architect for failure to notify would be based on a breach of his own contractual duty, and not as guarantor of the contractor’s performance.”).

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