Liability of creating a design process?

[beej67]

Forgive the slight cross-post from the stormwater forum, but I'll strip the details out here and go straight to the legal crap, which is my bigger question.

I have a client who has a product they'd like to sell to municipalities, basically a trash net to bolt onto the end of headwalls to catch trash. A municipality has asked my client to provide them a set of "example plans" for these things, that show the design process. Hydraulic calculations, in particular, to account for the tailwater effects of having a bag half full of trash hanging on a headwall. The plans are conceptual, and not of any particular site. There's an understanding between the municipality and my client that these example plans will be used by other PEs as a framework to design real installations, possibly many times over.

My example plans won't be sealed, and their real plans will be sealed. But lets suppose one of these things causes flooding, and the engineer of record gets sued. He proves that he followed the design process outlined in the example plans. Is my client then culpable for the liability because they provided the example plans to the municipality that the engineer used as a design guideline? Am I liable because I drew up the design guideline?



Hydrology, Drainage Analysis, Flood Studies, and Complex Stormwater Litigation for Atlanta and the South East -

http://www.campbellcivil.com

 

[zdas04]

You need to read my signature. You'd be foolish to follow the advice of a bunch of engineers on this one.

David Simpson, PE
MuleShoe Engineering

http://www.muleshoe-eng.com

Please see FAQ731-376 for tips on how to make the best use of Eng-Tips Fora.

"It is always a poor idea to ask your Bridge Club for medical advice or a collection of geek engineers for legal advice"

 

[Ron]

Design guidelines are almost always liability issues. There are so many different potential iterations of designs that it is almost impossible to cover the eventualities.

This comes under a category of "specific reliance". If another engineer relies on your design claims, and he gets sued, he has a potential of subrogation against you (an indirect claim, but a claim nonetheless). You would then have to prove the following two things...

1. Your design guidelines were clear and unambiguous
2. He deviated from your guidelines in such a manner that they were not applicable anymore.

While you might prevail, it would be a claim that would likely require significant defense and possibly litigation to resolve. Since it is a highly technical issue, you wouldn't want to take it to a jury....they don't usually understand these things and the one with the better looking lawyer wins.

I agree with David's signature advice.

 

[beej67]

David, I get that, but need somewhere to 'start' with my queries.

Ron, thanks, that was very helpful. Three questions:

1) Could I absolve myself of some/most/all liability by a stringent series of notes on the "example plans" indicating that every installation is different due to site constraints, and engineer should not "specifically rely" (or work the term in there somehow) on the procedures outlined in the example plans? That way I might be able to meet my client's needs, and the city's demands on my client, without the city running off with what I've provided and using it to develop a design procedure.

2) How do state agencies typically get away with this, with the design procedures and guidelines they make private engineers follow? Do they simply hide under the whole "can't sue City Hall" thing?

3) You used to work up here. Do you have a recommendation for a lawyer up in my area to go to with this question?



Hydrology, Drainage Analysis, Flood Studies, and Complex Stormwater Litigation for Atlanta and the South East -

http://www.campbellcivil.com

 

[Ron]

beej67...

1) Yes, you can add caveats to your drawing/procedure to help deflect your liability. It will help, but won't necessarily stop it, though it will considerably cut down your legal bill if you get sued. Make sure that in your contract with your client that you maintain document control and limit the re-use to "only with your permission in writing". That will help you if the City tries to use your guidelines without permission. Further, you might want to copyright the procedure. The caveats you put, the more you'll make any engineer who uses it think about his actions.

2) Government agencies generally have sovereignty, so it is difficult to sue them...not impossible, but usually not worth the trouble.

3) Smith, Currie and Hancock, LLP is a good construction/professional liability firm in Atlanta
(

http://www.smithcurrie.com)

or

Pursley, Lowery and Meeks, LLP
(

http://www.plmllp.com/)

 

[beej67]

I just got an interesting response back from the client, after I expressed some concerns to him about this before posting the thread on Friday:

"Let’s think of a way that we (the manufacturer) take the liability of what is being furnished. Anything you can think of from that standpoint is fine, and let’s keep it easy."

Awfully nice of them. Any brainstorm ideas for getting them to cover liability for this "example plan" set (or for other future work with their products) short of having them just outright pay my prof. liability insurance premium? I'd like to have some in my back pocket before I go to meet with an attorney.



Hydrology, Drainage Analysis, Flood Studies, and Complex Stormwater Litigation for Atlanta and the South East -

http://www.campbellcivil.com

 

[Ron]

beej67...a good indemnity clause in your contract and a limitation of liability should do it.

 

[drawoh]

beej67,

Let's come at this from a non-legal direction.

I have worked with people who are rigidly process driven. I get nervous when people look for processes for doing stuff. Procedures are how MacDonalds trains semi-literate teenagers to make their hamburgers.

How capable are you of writing a procedure to perform the design task? To what extent are you relying on the person following the procedure, to know what they are doing?

If nothing goes wrong, you don't get sued.

JHG

 

[beej67]

I don't intend to write a procedure if I can help it. I would prefer to meet my client's expectations and the city's expectations with as little actual procedure shown as possible. The scope the city is requesting of my client is rather nebulous. "Provide us with a set of example plans, showing how your product is to be designed" is the closest thing I've heard to a real scope on the thing, which is partly why it's difficult to set a fee for the work.

I don't feel that true engineering can be reduced to "following procedures." At least not in my field. If I were to do what you're asking, I'd start with something like "determine a design flow rate in a manner consistent with the accepted standard of care." Which of course would drive a regulatory agency nuts.

Point being, there's many ways to skin a cat, some of which are wrong, and knowing which way to pick for a particular cat is part of being a good engineer.

Hydrology, Drainage Analysis, Flood Studies, and Complex Stormwater Litigation for Atlanta and the South East -

http://www.campbellcivil.com