Downloaded from ascelibrary.org by LOUISIANA STATE UNIV on 02/12/14. Copyright ASCE.

For personal use only; all rights reserved.

Mitigating Professional Liability for Civil Engineers: White Paper

ASCE COMMITTEE ON PROFESSIONAL PRACTICE, CONSTITUENT COMMITTEE ON BUSINESS PRACTICES AND PRACTICE GUIDELINES
ABSTRACT: The profession of civil engineering has again come to the attention of personal injury attorneys. Recent trends in professional liability litigation show disturbing shifts, as plaintiff attorneys seek to expand the historic doctrines of what does and does not constitute professional liability for engineers. Historically, professional liability has been limited to negligence in the performance of an engineering assignment (an error or an omission). Recently, however, claims have been litigated against engineers based on such diverse additional exposures as job-site safety, product liability (e.g., defects in reports, which attorneys claim are sold by engineers to their clients), warranties that ones work will meet a certain standard or fulfill certain promises, claims of damages incurred by unauthorized third-party users of reports, and similar situations. While such litigation can create legal and financial nightmares for practitioners, assistance is available in meeting and mitigating these challenges. Practitioners are urged to review the guidelines presented in this white paper, and work within their firms and with competent outside counsel to prepare specific programs and policies to address how best to mitigate their own professional liability exposures.
his document is a white paper about professional liability for civil engineers. Its purpose is to examine the current status of the profession with respect to what might be termed assumed and imposed legal liability for our professional actions. It is not, however, legal advice
Leadership and Management in Engineering

andshouldnotbeconstruedassuch.Thecontentsofthisdocument, furthermore, are quite broad and comprise generic descriptions of a complex and challenging set of circumstances that affect all civil engineers. For advice on a specic issue or issues involving professional liability, readers are urged to consultwithanexperiencedandcompetentattorney. This white paper was prepared by and is under the jurisdicO C T O B E R 2 0 0 4

141

Leadership Manage. Eng. 2004.4:141-147.

............................................................

tion of the ASCE Committee on Professional Practice, Constituent Committee on Business Practices and Practice Guidelines.

STATEMENT OF THE PROBLEM Opportunities relating to the just and unjust application of professional liability law have again caught the attention of the personal injury bar in the United States. In their zealous search for jackpot justice, tort lawyers are increasingly seeking to engage design professionals as defendants in individual and class-action lawsuits. More and more civil engineers are being caught up in this legal feeding frenzy, resulting in time being spent in defending against suits as well as drastic and dramatic increases in the cost of professional liability (errors and omissions) insurance. Nor is this crisis limited to civil engineers in private practice; public agency representatives and their employers are also affected as the tort lawyers are fully aware that government represents the ultimate deep pocket. This white paper is based on the notion that there are two types of professional liability for civil engineers; they are dened herein as assumed and imposed liability, and there is a signicant distinction between them. The assumed professional liability is that which has traditionally applied to all design professionals, not just civil engineers. It is the justied imposition by society and the profession of the design professionals responsibility for their own errors and omissions. On the other hand, imposed professional liability ows from recent trends in personal injury litigation to expand the scope of responsibility of the design professional to include errors, omissions, and actions by other parties, or to include incidents occurring in the normal course of business that have never previously been the basis for litigation. As an example of imposed liability, a small geotechnical engineering rm in metropolitan Atlanta had an assignment to oversee the foundation construction and to test concrete and mortar being used in the building of a big box retail outlet. The engineering rms contract specically and explicitly excluded any responsibility for means and methods of project construction, and any responsibility for job-site safety. During the erection of the concrete-block wall, the contractor neglected to ll the wall voids with grout on a regular basis, as specied in the project plans, and did not properly shore the wall as erection proceeded. When the wall reached its nal height and grouting of the concrete block voids began, the wall became top-heavy and collapsed, killing one worker and injuring two others (all undocumented foreign nationals). The contractor was protected by his workers compensation coverage, and the owner was protected because it was still the contractors project. The only target for litigation was the design rm, whose professional liability carrier ultimately settled for over $750,000.
O C T O B E R 2 0 0 4

THEORIES OF LIABILITY LAW When a person is injured through the deliberate or negligent action or inaction of another, a tort has occurred. Excluded from the denition of tort, however, is any damage or loss resulting from a civil contract. In the case described above, the injury to the undocumented workers was a tort and, in the opinion of the design professional, was the responsibility of the workers employer. The design professional had presumed that the terms and conditions of the contract between their rm and the owner would provide a shield from claims by parties with whom there was no contractual tie. As noted above, this was a mistaken assumption. Fifty years ago, design professionals were already aware that they were rightly responsible for liability arising from their professional acts and omissions. The legal standard that was applied had been developed from the English Common Law and required that design professionals exercise that level of skill and care ordinarily demonstrated by members of the same profession, under similar circumstances and at the same time as the services being provided, in the same geographic area. It was recognized under the law that errors and omissions occur and that not every such action or inaction constitutes negligence. To demonstrate negligence, it was necessary to show how the design professionals action or inaction failed to meet the standard of ordinary skill and care. This has all changed in the last 50 years. Current jurisprudence is such that anybody can sue anyone else for anything at any time. Claims are made that defendants should have protected plaintiffs from any injury regardless of circumstances. Juries, sympathetic to injured parties, too often agree, with sometimes staggering awards being the result. Personal injury attorneys sift through all parties involved in a failed project, seeking the organization with deep pockets as their principal target and slanting the evidence to make that party appear culpable. In most cases, it is less expensive to settle an unfounded lawsuit than to ght and win, which many attorneys use in their favor. In the Jonathan Harr book, A Civil Action, the lead attorney, Jan Schlichtmann, was quite candid in explaining that his rm used the proceeds of numerous small lawsuits settled quickly to fund their pursuit of the big sh at Woburn, Massachusetts. Examples of jackpot justice have made headlines all across the country. Recently, in Alabama, the purchaser of a Mercedes Benz sedan with a minor aw brought suit and won a verdict in excess of $100,000,000, more than 1,000 times the value of the automobile at issue. Every cup of coffee now purchased at McDonalds has a printed warning that coffee is hot, owing to a jackpot justice award to a customer who spilled coffee while driving and was scalded, and whose lawyer claimed at trial should have been warned. Excessive jury awards have nally caught the attention of Congress and the various legislatures across the country, and
Leadership and Management in Engineering

..........................................................................................................................................................................................................................................................................................................................................................................................................................................

Downloaded from ascelibrary.org by LOUISIANA STATE UNIV on 02/12/14. Copyright ASCE. For personal use only; all rights reserved.

142

Leadership Manage. Eng. 2004.4:141-147.

Downloaded from ascelibrary.org by LOUISIANA STATE UNIV on 02/12/14. Copyright ASCE. For personal use only; all rights reserved.

attempts are underway to rein in the system. Such efforts, however, are being resisted at every turn by the trial lawyers, who have much to lose if the present personal injury jackpot justice system is signicantly reformed. Since attorneys comprise most of the legislators at the federal and state levels, and since the trial lawyers make huge contributions to politicians campaign funds, true reform remains an elusive ideal.
Professional Liability

As previously described, professional liability in the United States arises from the English Common Law doctrine that all professionals have duties to the public and to their clients. These duties include practicing only in areas of ones professional competence, practicing in a fashion that allows the engineer to meet the prevailing standard of care, working to protect the health and safety of the public, and many others. Professionals, by virtue of their advanced training and specialized experience, are rightly expected to practice in a professional manner and are held to higher standards than are workers in other occupations. Negligence is a failure, through a preventable error or omission, to practice within the prevailing standard of care. A classic example of negligence occurred when a hotel mezzanine collapsed during a dance, and the subsequent trial revealed that the engineer who designed the structure had failed to take harmonic motion into account during the design. The court found that an engineer practicing with ordinary prudence in that state at that time would have realized that dancing on the mezzanine was a predictable event, and would therefore have examined the resulting harmonic vibrations. Professional liability (errors and omissions) insurance was created to protect the design professional, their clients, and the public from such negligence. Gross negligence, on the other hand, is willful or reckless professional misconduct (such as falsication of test results) that results in harm and is generally excluded from professional liability insurance coverage. As was previously noted, however, personal injury attorneys are always attacking the prevailing standard of care doctrine, seeking to dene it as something more strict than its actual intent. Other theories of law that are being increasingly applied to engineers are strict liability, contractual liability, breach of warranty, and third party reliance. As suggested earlier, these theories have not traditionally been of concern to design professionals, but recent litigation has made their understanding more important to our profession. Strict liability was developed on the basis that products that are sold in commerce need to be free from material defects, because uncorrected defects can lead to injury. Recent high-prole examples include toys that cause choking in small children, gasoline tanks that explode on impact, and similar cases. It is because of strict liability that product reLeadership and Management in Engineering

calls have become a common occurrence. But how does this apply to design professionals? Consider the following. If an attorney can demonstrate that a professional report had one or more errors, and that the report was a product that was sold to the client by the design professional, then the lawyer can claim that strict liability applies. As a means of legal recovery for damages, the standards of strict liability are much more adverse to engineers than are those of professional negligence. The avenue that allows this problem to arise is when the design professional somehow allows the ownership of documents to be transferred to the client. Contractual liability (also known as breach of contract) is a doctrine that argues that a design professional violated the terms and conditions of the contract by a specic action or inaction. This can arise, for example, when a work scope is too broadly written (e.g., XYZ Engineering will examine all alternatives before selecting the roof support system. It is not possible to examine all the alternatives to anything). The statutes of limitation for breach of contract lawsuits are typically longer than those that apply to professional negligence. Also, the burden of proof for the plaintiff is typically less demanding and is completely out of the engineers control during litigation (the decision will rest on how attorneys can parse the language of the agreement, not on the engineers actions or inactions). A breach of warranty can be claimed if a contract includes either an express or an implied guarantee of, say, a certain level of professional service (e.g., XYZ Engineering will perform its services in accordance with the highest standards of the profession.). In this example, hapless XYZ Engineering has managed to shoot itself in both feet. Not only is this clause impossible to fulll, it is also a warranty, and its language negates the prevailing standard of care defense against a claim of negligence. In addition to the problems that can arise under contractual liability claims (which can be quite similar in terms of statutes of limitation and the burden of proof), any warranty that a design professional gives to clients is typically excluded from coverage under professional liability policies. Third party reliance occurs when somebody who was not a party to the original assignment or contract for professional services somehow seeks to convince a judge and jury that they had the right to rely upon the ndings of the professional services performed. An example is when a subsequent purchaser of real estate relies upon a Phase I environmental site assessment (ESA) performed for an earlier owner or prospective owner, or when a developer attempts to use a previous foundation design for a completely different type of structure. The fact that the third party is unjustly attempting to get something for nothing is of little import to a plaintiffs attorney, who is willing to argue with a straight face that the design professional should have been able to foresee the application of their work in such a fashion.
O C T O B E R 2 0 0 4

143

Leadership Manage. Eng. 2004.4:141-147.

..........................................................................................................................................................................................................................................................................................................................................................................................................................................

Downloaded from ascelibrary.org by LOUISIANA STATE UNIV on 02/12/14. Copyright ASCE. For personal use only; all rights reserved.

Professional liability insurance has been mentioned several times in this document. Such insurance (also known as errors and omissions insurance) is required by some classes of clients (e.g., public agencies), and has generally thought to make good business sense. Recently, however, attorneys have been known to voice the opinion that professional liability insurance is a source of money that engineers have a duty to share. In the case of the collapsed wall cited before, the plaintiffs attorney told the CEO of the engineering rm, Its not personal, Im just after your insurance, as if the insurance rms provide coverage at no cost as a public service. Possession of professional liability insurance by a design professional rm is being increasingly viewed as a lawsuit magnet, and more (typically smaller) rms are canceling their coverage.
Mitigating Professional Liability

In light of the foregoing, how is a professional services rm to protect itself from the unjust lawsuit while protecting its clients in the event an error or omission occurs? While this can be very challenging, help is available. In addition to the resources provided by ASCE, there are other organizations of professional service rms that specialize in providing assistance for design rms. Two of the best for private-sector design professionals are ASFEThe Best People on Earth (formerly the Associated Soil and Foundation Engineers, ASFE) and the American Council of Engineering Companies (ACEC). The Resources section at the end of this paper lists some of the additional resources available to expand understanding of the issues. Techniques to implement loss prevention are many and varied, and they make good business sense. Here are a few brief examples: Make loss prevention part of the fabric of your professional practice. While nobody goes to work ever thinking, Today Im going to do something negligent that will get me sued, all of us too often go to work distracted by other cares or concerns. Communicate with your clients. Clients are not limited to private sector engineers; public-sector design professionals also have clients who rely upon their professional work. All clients are alike in one waythey need information from you. There is an axiom in loss prevention that friends dont sue friends. What this means is that if you have a strong relationship at a personal level with your client, and if your client is aware that you are sincerely interested in him or her as a person over and above the demands of the project, then they are far more likely to come to you personally and informally if a problem arises. Similarly, if you are aware that a problem has developed, it is imperative that your client hear about it from you rst. Be proactive about solving problems that occur and seek
O C T O B E R 2 0 0 4

out your clients opinion and feedback on how your organization performed on the assignment. Ask yourself this question, If your client was unhappy, would you rather know about it and know why, or would you rather hear via the grapevine that they had gone to a competitor? Train yourself and your employees in loss prevention. Loss prevention training includes a host of topics, all of which need to be hammered in to you and your staff continuously and repeatedly. A few examples are: Examine your marketing materials to ensure they dont promise more than you can deliver; Examine your proposals to perform professional services to ensure that they accurately describe what you will do (and, more importantly, what you will not do); Examine your standard form contract to ensure you are not selling your reports to your clients (you sell your professional time, not your reports), that third parties are not somehow entitled to rely upon your work, and that you are not taking responsibility for other aspects of a project that are not intended (e.g., site safety or construction means and methods); Examine your eld practices to ensure your groups representatives are not inadvertently enlarging your responsibilities on a project site (e.g., what your employees should do or say if they observe an unsafe work practice; if they say or do too much, that can make your rm responsible for all site-safety issues); Examine your eld report forms and reporting format to ensure that what is said is what needs to be said, and that overly broad language is not included (in the case of the collapsed wall, the engineers eld representatives had been in the habit of nishing each report with the phrase, all activities observed today were in accordance with plans and specications); Examine your internal peer-review practices to ensure thorough checking and rechecking of designs and calculations; Examine your client maintenance strategies (your clients should not hear from you via only the proposal, the report, and the invoice; take other opportunities to make personal contact); and Above all, treat your clients the way you want to be treated by the professional rms that you engage. Solicit help from your professional liability carrier. Professional liability insurance rms love to provide loss prevention training to their customers, and most of them are eager to furnish no-cost or low-cost classes and other materials. Make use of existing resources that are already available. The section on Resources at the end of this document provides a list of professional practice associations that have already spent years developing products and services to assist practitioners in successful loss-prevention techLeadership and Management in Engineering

144

Leadership Manage. Eng. 2004.4:141-147.

..........................................................................................................................................................................................................................................................................................................................................................................................................................................

Downloaded from ascelibrary.org by LOUISIANA STATE UNIV on 02/12/14. Copyright ASCE. For personal use only; all rights reserved.

niques. Web site links are provided for convenience. In addition, two existing ASCE Policy Statements (PS 318 on Tort Reform and PS 364 on Prevention of Frivolous Lawsuits) summarize the public posture of our society on these important issues. Adoption of the recommendations provided in the two policy statements by legislatures and the courts would provide signicant assistance to practitioners nationwide. All practitioners, therefore, should join the efforts to achieve tort reform, including support for efforts to prevent frivolous litigation. When all your goodwill fails and you receive a certied letter fromsomelawyeryoudontknow,whatcanyoudo? IVE JUST BEEN SUED...NOW WHAT? What can you do when that day comes when you are served with a lawsuit? Aside from the obvious steps (call your professional liability carrier and your attorney), there are a number of techniques that can be employed. One of them is the prevailing standard of care survey. A proactive use of the prevailing standard of care doctrine can provide material assistance in defending a lawsuit alleging negligence. For such a suit to be successful, the plaintiffs attorney has to convince the judge and jury that the engineers action or inaction somehow failed to meet the standard of care (previously dened). Typically, this is accomplished through the use of a plaintiffs expert. This individual will examine the facts of the case and testify that the standard of care was not met. The defendants attorney will naturally engage another expert who will directly contradict the plaintiffs expert. Then the judge and jury have to weigh the competing testimonies and decide which one is to be believed. This system has the principal disadvantage of distilling an evaluation of complex technical issues down to a popularity contest of sorts, where the most attractive and articulate expert will be believed, giving the victory to his or her side. Plaintiffs attorneys know how to use this system to their advantage, and there are experts who make a very comfortable living doing nothing but accepting assignments of this type. Such individuals are the source of the term, hired gun for personal injury litigation. Fortunately, there is a better way to overcome the use of hired guns. In the document, Recommended Practices for Design Professionals Engaged as Experts in the Resolution of Construction Industry Disputes, ASFE, ASCE, ACEC, National Society of Professional Engineers (NSPE), and 27 other organizations of design professionals have dened a means of defending against hired-gun testimony through the use of a survey of the standard of care. It works in the following fashion. The defendants attorney and defendants expert examine the allegations in the complaint and dene the specics of exactly where negligence is said to have occurred. The
Leadership and Management in Engineering

accuracy of this assessment should be tested when the defendants attorney deposes the plaintiffs expert. Once the specics of the alleged negligent act or acts are thus dened, the defendants expert conducts a survey. Typically a questionnaire is prepared, which is presented to a group of similar design professionals who were offering similar services in the same area where the incident occurred, at the same time. The questions are designed to solicit what each surveyed engineer would have done or not done when faced with the same situation. Typically, the plaintiffs expert will not have practiced in the area,offeringsimilarservicesasthedefendantatthesametime. He or she will be offering testimony that is based on dissimilar experiences, at other locations, at different times. The courtroom presentation of the standard of care survey to the plaintiffs expert, and the subsequent disclosure that the experts testimony is not supported by the actions of actual peers of the defendant, is typically sufcient to discredit the hired-gun testimony and has been known (in some cases) to cause the judge to instruct the jury to ignore that experts testimony. SUMMARY AND CONCLUSIONS Unfortunately, it has come to pass that if you are a producer in this country you are a target for litigation. The more you succeed, the better the opportunity for others to nd fault with what you have done. The courts used to act as a lter and would throw out obviously frivolous suits. That is no longer the case and it appears that the more ridiculous a theory is, the better its chance of success. It is not a question of if you will get sued, it is a question of when will you get sued. Although this appears (and is) unfair to the design professional, it is a reality of business and must be taken into account with the services you provide. As with all business issues, they cannot be taken personally and they cannot be ignored. Education and experience are the key to success and it is always easier and less expensive to learn from others. The goal of this paper is to increase your awareness of the current issues surrounding professional liability and provide resources to further your knowledge and understanding. The ght to reduce litigation against design professionals and control liability theory expansion has to be waged at several levels. These include how you conduct your personal work, how your company conducts its work, how you support your profession, and how you inuence public opinion and policy. The following are some of the steps that were suggested in this white paper that can be taken at the business level to reduce the impact of unjust professional liability assessment: Maintain good personal relationships with your clients. Be responsive and responsible for the services you provide. If its wrong, x it as soon as you nd out, and denitely before being asked.
O C T O B E R 2 0 0 4

145

Leadership Manage. Eng. 2004.4:141-147.

..........................................................................................................................................................................................................................................................................................................................................................................................................................................

..................................................................................................................................

Downloaded from ascelibrary.org by LOUISIANA STATE UNIV on 02/12/14. Copyright ASCE. For personal use only; all rights reserved.

Do your best to understand contracts and the legal implications of the contracts you sign, and work toward having liability fairly distributed between you and your client. Do not take on grossly awed projects unless both you and the client agree that your role is to undertake a forensic investigation. Screen and select your clients carefully; some clients deliberately plan to place their liability on your shoulders. A client that nitpicks your contract will be a continuous problem. Review your contracts with your insurance carrier, and when they say its the worst contract they have seen in years, be prepared to walk away from the project. There is always an engineer out there who will sign any contract and take any job. Dont be that engineer. Limit your work to the work you do well. APPENDIX. RESOURCES

Quality is not something that can be painted on a project at its deadline; it has to be built in from the start. Meet your deadlines (if you cant meet a deadline, your client should learn about that as soon as you do). Dont compromise your standards; always check your work and dont expect to x a problem during construction ... and remember that no good deed goes unpunished! In addition to this, engineers should work with their professional societies to create legislation that ammends contract law to be less favorable to engineers, advocate tort reform, improve the publics appreciation of the services provided, and work toward a single voice that can be heard to institute change. If tort reform is to succeed, all engineers must be prepared to pledge their lives, their fortunes, and their sacred honorinthatnobleeffort.

Table 1. Agency AmericanCouncil of EngineeringCompanies AmericanSociety of CivilEngineers ASFE TheBestPeopleonEarth AmericanPublicWorksAgency NationalSociety of ProfessionalEngineers Documents ASCEPolicyStatement318,ProfessionalLiability/TortReform ASCEPolicyStatement364,PreventionofFrivolousLawsuits
.........................................................................................................................................................

Acronym ACEC ASCE ASFE APWA NSPE

Websiteaddress http://www.acec.org http://www.asce.org http://www.asfe.org http://www.apwa.net http://www.nspe.org

APPENDIX. GLOSSARY OF TERMS Breach of contract: Occurs when a party to a contract, without sufcient excuse or justication, fails to perform in accordance with the provisions of the agreement. Breach of warranty: Occurs when the provisions of a contract contain an explicit or implied warranty, and a failure of performance under the contract is construed as failing to fulll that warranty. Contractual liability: Is typically conned to the parties to an agreement; affords the innocent party a means of protecting his/her legitimate interest in having the contractual obligationsfullled. Deep pockets: The party(s) with the most assets who is justly or unjustly included in the legal action as a defendant. These are typically public agencies, parties with insurance coverage, largermswithobviousassets,etc.
O C T O B E R 2 0 0 4

Errors and Omissions: Otherwise known as professional liability. This is the liability that occurs as a result of the negligent action or inaction by a design professional during the performanceofservices. Guarantee: Classic Denition: a warranty that the materials and workmanship of the job will prove satisfactory for a specied period of time after the completion of the contract. If any deciencies arise during this period of time, the provider of the guarantee is bound by that guarantee to correct any deciencies. Recently, owners have sought to extend this denition and apply it to professionals and the rendering of their services. Ifthisapplicationbecomesthenorm,thenextstepwouldbeto apply the standards of product liability to professionals. This has the result of increasing liability exposure in an area for whichthereisnoinsurance. Gross negligence: A recklessness or wanton disregard for the rights or safety of others. Gross negligence represents the conLeadership and Management in Engineering

146

Leadership Manage. Eng. 2004.4:141-147.

......................................................................................................................................................................................................................................................................................................

scious failure to exercise diligence in an effort to prevent an injury which the situation indicates is very likely to occur in theabsenceofordinaryprecautions. Negligence: Under tort law, any act or omission which brings injury to another or others can be redressed even when the individual who committed the act or omission has absolutely nointentionofoccasioningsuchinjury. Negligent action: An act of conduct which is abnormally likelytocauseharmtoothersthoughnotintentionallyso. Prevailing standard of care: That level of skill and care ordinarilydemonstratedbymembersofthesameprofession,under similar circumstances and at the same time as the services beingprovided,inthesamegeographicarea. Product: A tangible item that is produced. The manufacturer of a product typically has control over all aspects of its design, prototypeandtesting,fabrication,distribution,anduse. Productliability:Alegaldoctrinethatholdsthatproductsthat are sold in commerce need to be free from material defects, because uncorrected defects can lead to injury. Also known as strict liability, product liability invokes a higher standard of care than does the prevailing standard of care doctrine. It also requires a lower threshold of proof in litigation. Engineers provideservices;theydonotproduceproducts. Professional liability: The justied legal liability that attaches to engineers and other professionals that is based on the duties owed to clients from professionals. These include, but are not necessarilylimitedto,practicinginonesowneldofexpertise, practicing in a fashion that meets the prevailing standard of care, practicing in a fashion that protects the public health, safety, and welfare, and others. Failure to fulll these duties mayconstitutenegligence.

Downloaded from ascelibrary.org by LOUISIANA STATE UNIV on 02/12/14. Copyright ASCE. For personal use only; all rights reserved.

Professional service: Services performed by professionals, e.g., engineers, attorneys, physicians, accountants; these are professions that are controlled by state professional codes. Professional services are expected to have some errors and omissions that do not always necessarily arise from negligence. This is why engineers are held to the prevailing standard of care instead of more strict doctrines of liability (such as those associatedwithproducingaproduct). Strict liability: A legal doctrine that a damage- or injurycausing defect in a product is enough to establish liability, whether or not the producer of that product was negligent in thedesignortheproductionoftheproduct. Thirdpartyreliance:Occurswhenapersonorentitythatisnot a party to a contract for professional services has a right, or claims a right, to rely on the work performed. This creates difculty for the design professional because it is not possible to foresee the goals and requirements of unintended third parties whentheserviceisperformed. Tort: Includes any and all wrongful acts done by one person to the detriment of another for which the victim may demand legal redress. A tort may be committed intentionally or unintentionally and with or without force. Also, a private injury on account of which a suit may be brought by the affectedparty. Warrantee: See Guarantee. This white paper was prepared by the ASCE Committee on Professional Practice, Constituent Committee on Business PracticesandPracticeGuidelines.Thecorrespondingauthoris Peter H. Dohms, Gallet & Associates Gulf Coast, Inc., 3355 CopterRd.,Suite8,Pensacola,FL32514.Hecanbecontacted LME by e-mail at pdohms@gallet.com.

Leadership and Management in Engineering

147

O C T O B E R

2 0 0 4

Leadership Manage. Eng. 2004.4:141-147.