A design professional is sued. The lawsuit concerns a structural failure of a bridge suspended across a restaurant/nightclub. Two of four supports fail, and the balcony tilts suddenly to one side. The plaintiff, walking across the balcony when it failed, is thrown over the railing, resulting in personal injuries. The plaintiff files suit against the premises owner, the contractor, and the structural engineer hired by the owner. The plaintiff alleges the structural engineer was negligent in not identifying the admittedly faulty connection detail when reviewing shop drawings or during site observations. The structural engineer denies any negligence.

This is the second of two articles on the standard of care for professional design services. Part 1 of this series (June 2005) explained the distinct body of law governing professional services of which the standard of care is an integral part, and ways in which the standard of care benchmark may be modified, sometimes indirectly.

This part explains the proof required and the role of expert witnesses at trial with respect to the standard of care. The hypothetical lawsuit described above is provided to help illustrate these concepts.

Burden of proof

In order to prevail against the structural engineer, the plaintiff must prove the following:

1. that the engineer owed the plaintiff a duty of care in providing his or her services;
2. that the engineer breached the standard of care as evidenced by the structural failure; and
3. that this breach caused some or all of the plaintiffs damages.

The plaintiff has the burden of proof, but the engineer will try to disprove one or more of these elements. Since there is no dispute that the balcony supports failed and that this caused the plaintiffs injuries, the only issue between the plaintiff and engineer (other than the amount of damages if liability is established) is whether the engineer was negligent because of failure to meet the applicable standard of care for his or her services.

Expert testimony

The law of most, if not all, states requires expert testimony to establish a professionals breach of the standard of care. In response to concerns, about the reliability of expert testimony some states now require a certificate of merit, with explicit criteria for expert qualifications, to be filed with a lawsuit against a design professional. Generally, a certificate of merit is an affidavit by a competent professional that identifies one or more negligent acts.

As a practical matter, competency to opine on the standard of care requires at least some education, training, and experience in the portion of the professionals field of practice at issue. For example, in Texas, the plaintiff must produce a certificate of merit affidavit from a witness who is either a registered architect or licensed professional engineer; or who is competent to testify by education and training, and who practices in the same field as the defendant engineer.

Once the expert is chosen, he or she must provide specific opinions, initially in a written report, and later at trial. These reports consist of the following three primary elements: the experts qualifications to opine, the experts opinions, and the basis of the opinions.

An expert opining on whether a design professional was negligent, as in the hypothetical lawsuit, will offer at least two opinions. First, he or she will consider the standard of care applicable to the design professional sued; and second, the expert will comment on whether the design professional met the standard of care on the project. Make no mistake, litigants can almost always find someone who can be deemed a legally competent expert. Absent such proof, there would be no lawsuit brought, or the claim against the design professional could be determined as a matter of law through summary judgment or dismissal. The basis of the opinions will include relevant project information—which the expert took into account as interpreted by the experts training and experience (competency). The finder of fact at trial (either a jury, a judge sitting without a jury, or arbitrator) will decide which partys expert is correct.

A design professional should strive to limit the standard of care in contracts to ordinary or customary care exercised by similarly licensed professionals. The design professional should objectively test his or her services by asking whether reputable practitioners would agree that the quality of services being provided meet the standard of care. The reward for doing so should be obvious. The standard of care for design professionals (Part 2) By John R. HawkinsThe Risk Management Program (RMP) is organized as a program of the American Council of Engineering Companies (ACEC) Coalition of American Structural Engineers (CASE). The groups mission is to enhance risk management, loss prevention, and claims management techniques of the structural engineering profession. To learn more, visit www.acec.org/RMP.

John R. Hawkins is a partner in the Houston-based law firm of Porter & Hedges. He can be reached at jhawkins@porterhedges.com.