Engineering Specifications: Importance & Liability

1. Engineering Risk and Liability Why Proper Specifications are Important

2. Overview – Engineering • Who are we & what do we do? • Who do we provide professional services for? • What is the engineers responsibility? • What is a negligence claim comprised of? • What is our responsibility with respect to construction materials and specifications? • Do our decisions have consequences?

3. Who Are We and What Do We Do? • Engineers are PROFESSIONALS To earn the title PROFESSIONAL we have been educated at a quality college or university, we have completed four years of on the job training and passed at least two comprehensive teststo verify our knowledge in our field of expertise. • Engineers use their professional knowledge to harness and use nature’s vast resources of material and energy for mankind’s benefit.

4. Who Do We Work For? • Our fellow man • Our employer ( Private Consultant, City, County…..) • The client ( Owner, Architect, Tax Payers….) • The Consumer or user of the facility or site

5. What is Our Responsibility To Those We Work For? • In general, the Responsible Engineer’s role in any design project is to design a project that meets the desired purpose, is constructible, and is designed so that the user and public health, safety and welfare are protected. • Protect our employer from undue liability.

6. Engineering Responsibility • Any time an Engineer designs a project, almost any error or mistake could result in either property damage, personal injury or death. • State laws, State Licensing Boards and Professional Society Codes of Ethics define the Engineer’s role and responsibility in both legal and moral obligations. • If the design is found to be faulty and there is injury-to either property or person, or the Engineer is found not to have followed the Standard of Care-the Engineer can be held liable and negligent.

7. Negligence Defined • Negligence – The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. Blacks Law Dictionary 7th Edition.

8. Negligence • Negligence occurs when the defendant’s conduct imposes an unreasonable risk upon another, which results in injury to that other. The negligent tortfeasor’s mental state is irrelevant. • Doctrine of negligence rests on the duty of the engineer to exercise due care in his/her conduct towards others from which injury may result.

9. Negligence Components • Duty • Failure to conform conduct to the Standard of Care • Proximate cause • Damages

10. Duty-to Whom it is Owed • The public-by statute or Code of Ethics • Employer • Customer • Consumers • Those whom we reasonably know may be affected by our decisions.

11. Engineers Are Bound Ethically and Legally • State Administrative Law/Rules • National Society of Professional Engineers • ASCE Code of Ethics • Order of the Engineer

12. State Administrative Rules State Administrative Codes/Rules/Laws defines the primary obligation of an engineer is to protect the safety, health, property and welfare of the public.

13. ASCE Code of Ethics • Fundamental Canon 1.0 • “Engineers shall hold paramount the safety, health and welfare of the public…. • a. Engineers shall recognize that the lives, safety, health and welfare of the general public are dependent upon engineering judgment, decisions and practices incorporated into structures, machines, products, processes and duties. • b. Engineers shall approve or seal only those design documents reviewed or prepared by them, which are determined to be safe for public health and welfare in conformity with accepted engineering standard.”

14. Order of the Engineer As an Engineer, I pledge to practice integrity and fair dealing, tolerance and respect, and to uphold devotion to the standards and the dignity of my profession, conscious always that my skill carries with it the obligation to serve humanity by making the best use of earth’s precious wealth. As an Engineer, I shall participate in none but honest enterprises. When needed, my skill and knowledge shall be given without reservation for the public good. In the performance of duty and in fidelity to my profession, I shall give the utmost.

15. NSPE “Engineer’s Creed” “I pledge to place service before profit, the honor and standing of the profession before personal advantage, and the public welfare above all other considerations.”

16. Standard of Care When you hire an engineer you "purchase service, not insurance," so you are not justified in expecting perfection or infallibility, only "reasonable care and competence" (Gagne v. Bertran 1934 43 C. 2d 481, 275 P. 2d 15). If the error is shown to have been worse than a certain level of error, the engineer is liable. This is what separates actions between non-negligent and negligent error and represents the "standard of care."

17. Standard of Care The standard of care of a professional is: that level or quality of service ordinarily provided by other normally competent practitioners of good standing in that field, contemporaneously providing similar services in the same locality and under the same circumstances. (Paxton v. County of Alameda (1953) 119 C. A. 2d 393, 398, 259 P. 2d 934).

18. Standard of Care Standard of Care 4 Key Items: • ...have learning and skill ordinarily possessed by reputable engineers practicing in the same or similar locality and under similar circumstances. • ...use care and skill ordinarily possessed by reputable engineers practicing in the same or similar locality and under similar circumstances. • ...use reasonable diligence and best judgment. • ...to accomplish the purpose for which the engineer was employed. If any one of these conditions is not met, the engineer has failed to meet the standard of care.

19. Proximate Cause & Damages Proximate Cause/Legal Cause There must be a sufficiently close causal link between the act of negligence and the harm suffered. Damages The plaintiff must show that he/she suffered actual damages.

20. Liability Defined • Liability – The quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment <liability for injuries caused by negligence>. Blacks Law Dictionary 7th Edition.

21. Liability • An obligation that one is bound in law or justice to perform • Condition of being actually or potentially subject to an obligation • Condition of being responsible for a possible or actual loss, penalty, expense or burden

22. Construction Materials and Specifications • The Engineer should personally research the product he or she is specifying and not rely on manufacturers claims. Decisions should be based on reliable field data and independent research. • Materials should have a design life that is equal to or exceeds the design life of the overall project or facility. • Material selection and specification detail should also be based on the quality and quantity of inspection.

23. Construction Materials and Specifications, Cont. • Construction materials and specifications should be clear and not require contractor or material supplier to make design decisions. • Engineer should use existing nationally approved specifications and guidelines (ASTM, AASHTO, ASCE) as a reference to prepare specifications and or details. • Specifications should include materials, installation procedures, and testing requirements.

24. Construction Materials and Specifications, Cont. • Construction materials should be selected on “VALUE” not initial cost. • DO NOT RELY ON MANUFACTURER SPECIFICATIONS OR INSTALLATION GUIDELINES!

25. What Are the Differences Between Rigid and Flexible Pipe? • Flexible • Load transfer to side support soil • Must deflect to function • Soil dependent • Prime structure is soil • Structure built and tested in the field • Designers must calculate the width of the trench required to provide sufficient structural strength for the system. This determination should be made by a soils expert. • Rigid • Load bearing structure • Load transfer down • Structure designed , built and tested is the pipe • Structure arrives on the truck • Not very soil structure dependent • Trenches have little effect on structural capacity of product

26. Engineers Responsibility in Specifying Flexible Pipe • Know the differences between Flexible and Concrete pipe. • Read and understand the manufacturer literature-distinguish ad “hype” from the actual manufacturer facts on their product. • Recognize that Flexible pipe is not a structure and not the same as concrete pipe-the design requirements are different. • Understand the Standard Specifications of ASTM and AASHTO.

27. Engineers Responsibility in Specifying Flexible Pipe Cont. • Recognize that the installation of Flexible pipe especially HDPE is an engineered installation and that the Engineer MUST take an active role in both design and construction. • Inspection required post project completion-The Engineer will never be divorced from the decision if made to use HDPE or CMP pipe. • Analyze the life cycle costs and risks associated with the pipe product chosen.

28. Design Engineering Consequences • If you have affixed your seal to a Drawing or Specification you are legally responsible for that drawing or specification. If you use a product because it is requested by the owner or client that does not relieve you of responsibility. • If any product or material shown on a plan sealed by you experiences a failure you will most likely be required to defend your decision and determine why the failure occurred.

29. Stay Out of Trouble • Recognize and understand the differences in pipe design, installation and inspection between rigid and flexible. • Recognize that the installation of flexible pipe is an engineered installation and that the Engineer MUST take an active role in both design and construction. • Require post project completion inspection – mandrel/video testing. • Analyze the life cycle costs and risks associated with the pipe product chosen.

30. Stay Out of Trouble • Limit your liability by properly researching, detailing and clearly specifying the products called for on your plans. • Don’t assume that you are “bullet proof” and that the design is protected either by its own professional liability insurance or that issues arising at the site are problems solely the result of manufacturer or contractor issues.

31. Conclusions • Concrete and HDPE pipe are not the same and not alternates to each other. • Concrete pipe trenches are not designed for plastic pipe. • Using other’s specifications and literature doesn’t relieve you of your design responsibility. • Soils are different at every jobsite. • If specifying plastic pipe, engineer has to be at jobsite to oversee installation as the structure is designed and tested in the field. • The engineer that sealed the drawings and specifications is legally responsible.

32. Conclusions Cont. • Only way to determine if a pipe system structure has been built according to your specs is through mandrel/video testing of the entire system: • If a deflection of > 5% Fails • Require no sooner than 30 days after backfilling and again prior to the surrender of the performance bond (12 months) • Engineers design, specify, require and ENFORCE. • The Engineer has duty under the law to protect the public health safety and welfare. • Forgetting any of the above results in the Engineers assuming the role of the Responsible Party with all the risk, liability and consequences thereto.