Sealing drawings and liability

[riskengr]

We are evalyuating our practices in regards to overseeing the work of subcontractors and sealing drawings for which we have taken responsible charge of the design. One of our engineers has quoted several cases in which he believes licensees were disciplined by the board when a design they had stamped failed due to changes made to the installation or surrounding conditions following the design. In this case he is referencing DE where he believes that engineers are now being held liable by licensing boards from cradle through grave for projects, regardless of how much control (if any) they have during construction.

Anyone have similar experiences or can lead me to some references. Anyone aware of this being done in other states?

Thanks,

Stephen Haines, PE, CFEI
Haines Fire & Risk Consulting

http://www.hainesfire-risk.com

 

[Ron]

If an engineer assumes responsible charge of a design project, then he assumes all of the liability that goes with that design up until the statute repose or limitation of that state expires. The statute of repose varies with states, but can range from a few years to ...forever! Most states are reasonable and cap the statute at somewhere between 8 and 15 years (in my home state, it is 10 years). If there is a design defect, leading to failure or defined and proved damages, within that statute of repose, then the design professional can be held responsible, assuming that he did not meet the standard of care or was negligent.

Assuming from your website you are in New Jersey, I believe your state has similar requirements as found in New Jersey Statute:

2A:14-1.1. Damages for injury from unsafe condition of improvement to real property; statute of limitations; exceptions; terms defined
1. a. No action, whether in contract, in tort, or otherwise, to recover damages for any deficiency in the design, planning, surveying, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall serve as a bar to all such actions, both governmental and private, but shall not apply to actions against any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.

b.This section shall not bar an action by a governmental unit:

(1)on a written warranty, guaranty or other contract that expressly provides for a longer effective period;

(2)based on willful misconduct, gross negligence or fraudulent concealment in connection with performing or furnishing the design, planning, supervision or construction of an improvement to real property;

(3)under any environmental remediation law or pursuant to any contract entered into by a governmental unit in carrying out its responsibilities under any environmental remediation law; or

(4)Pursuant to any contract for application, enclosure, removal or encapsulation of asbestos.

[highlight]If you guarantee a design for a period longer than the statute of repose or limitation, you're typically stuck with the guarantee period![/highlight]

 

[riskengr]

Ron,

I understand the responsibility for design flaws and ommissions. Our employee is indicating that the boards (at least in DE) are pushing for PEs to be responsible for the final product as well as their design. According to him there have been two DE cases (a construction mistake and a change in property use) where incidents occurred and the PEs were reportedly disciplined even though their seal only covered the design. Supposedly no as-built approval and seal.

If this is true and a trend this is a bit bothersome. We are in the fire protection industry and regulary have to provide sealed sprinkler system designs which are then released for bid for construction. We have no control over who recieves the bid, can't require As-built review/approval as we are not the owner/GC and are rarely ever contacted for follow up by the contractor.

Stephen Haines, PE, CFEI
Haines Fire & Risk Consulting

http://www.hainesfire-risk.com

 

[Ron]

riskeng...I agree that's bothersome. In a case like that, engineers tend to wrongly assume that they can represent themselves in a proceeding of the board. There's no way an engineer should be held responsible for the final project success, absent a design flaw. The DE state board should be ashamed that it would pursue something like that...but then, it's a political body, so there is often that consideration to make.

Personally, I would fight something like to the end...and even after! That is just not right.

 

[desnov74]

riskeng,
It gets worse, what if you sign a seal a job and the shops are done like this:

http://www.eng-tips.com/threadminder.cfm?pid=1426

 

[Ron]

desnov74...that's particularly troubling. The NICET certification is a good thing...just don't let the anectdotal experience of the technician stretch to replace the concepts of engineering, which is exactly what they are promoting.

 

[desnov74]

Ron/Riskeng~

Its not just anecdotal, NICET's president has sent out a message to all certificants. It apparantly is a growing problem.

Ron as to your comment for NICET certificants acting like engineers. Its a common attitude among fire technicians, example: (

http://www.eng-tips.com/viewthread.cfm?qid=271658&page=1).

I think part of the problem is that the SFPE does a crappy job of endorsing/protecting our specialty.

 

[Ron]

It seems that many state boards of engineering are more intent on punishing engineers for rule infractions than protecting the engineering profession from encroachment and usurpation. Yes,engineers who break the rules should be punished, but non-engineers claiming to be such or using engineering implications in their business names when they do not have engineers employed should be punished even more swiftly and rigorously.

Some of the engineering societies are no better. They are more interested in making money through publication sales than in protecting the sanctity of the engineering profession and the rights of licensed engineers.

 

[JedClampett]

I don't know about every state, but it seems like Texas spends most of its enforcement time penalizing non engineers from marketing engineering services

http://www.tbpe.state.tx.us/da/da082610.html.

It's to the point where some of the violations seem almost trivial. i.e. Using "Engineer" in your company name while your license has expired, even thoughn you've now renewed it.

 

[Ron]

JedClampett...be thankful...my state lets plumbing companies use "engineering" in their name when they do no engineering and do not employ engineers, a clear violation of our state law, yet they do nothing about it. They will prosecute a validly licensed engineer for using the wrong size seal, but they let the stuff that kills our profession go. I just don't get it. It frustrates the hell out of me.

 

[slomobile]

"They are more interested in making money through publication sales than in protecting the sanctity of the engineering profession and the rights of licensed engineers."

Ron, you have it right there.

Just last year the Politicians tried to remove "Structural Engineer" from our Title Act in California, because it cost them $6 Million a year to administer the test and such. Figured that $6 Million would help close the $20 Billion budget shortfall. They deduced if we have Civils, why have specialties like Structural too. The ACEC stepped in and showed them the light, so we don't have to throw out our business cards just yet.

 

[woodman88]

California "structural engineer" is a political joke. The only things they can design that a civil engineer in California can't are schools and hospitals. See the attach statement from the State Board.

Garth Dreger PE
AZ Phoenix area

 

[slomobile]

Woodman,
Agree to disagree there... Although you may have me outnumbered, I know 5500(+/-) SE's on my side, while you get the full force of 80000(+/-) PE's. (minus the obvious retirees and guys who are no longer with us)

 

[woodman88]

slomobile,
So you can only disagree and not explain why the "sturctural engineer" should be required in California.

Garth Dreger PE
AZ Phoenix area

 

[slomobile]

Woodman,

While it seems your comments regarding a "political joke" are self serving. I do not wish to argue the specialty of "Structural Engineer" with you on this forum. It's there, its a requirement, it affords a certain level of recognition for specialized knowledge in a particular field of Civil Engineering. While I know several SE's would could not engineer their way out of a box, and I also know very very capable PE's practicing in the field of Structural Engineering. However I know many more PE's who get their 2 years "experience", pass a math & units test known as the PE in Multiple choice format and go out on their own. It sounds like you are in need of the formation of a Lobby Group. If you don't like it, then work to change it through the proper channels with the board. Until that time, I believe it is you that should be required to explain the use of the term "political joke" as a modifier to those who hold the title "Structural Engineer" in California. Professionalism quickly left this thread the minute you coined a derogative term toward an achievement that many have worked so hard to achieve.

 

[riskengr]

So, to recover the thread from its errant direction - No one is aware of State Boards imposing a cradle to grave liability on PEs for designs they have sealed?

Any DE PE here? The cases our engineer is referring to apparently involved the collapse of deck and the inaudibility of a fire alarm in a mall (an arcade added post design). Any knowledge of these?

Stephen Haines, PE, CFEI
Haines Fire & Risk Consulting

http://www.hainesfire-risk.com

 

[slomobile]

Risk,

My sincere apologies for diverting your thread with an unrelated debate.

 

[woodman88]

Slomobile,
"Until that time, I believe it is you that should be required to explain the use of the term "political joke" as a modifier to those who hold the title "Structural Engineer" in California."

Political joke = Spending 6 million a year for a structural title that only applies for two types of government jobs that any civil engineer that is qualified could do.

Riskengr,
I believe that the State Boards will consider that as a PE you are liable for the first design to the last design that you seal. I am unaware (but have not research the subject) of California or Arizona imposing such a case, as of yet.

Garth Dreger PE
AZ Phoenix area

 

[TDAA]

What you describe would be beyond the standard of care. If there were changes made without your knowledge, how could you be liable, providing the changes constitute a condition beyond your original design parameters?

In order for that to be the standard of care, engineers would need to be clairvoyant and omnipotent.

 

[woodman88]

TDAA,
Are you referring to my answer to riskeng? If so, the State Boards (California and Arizona anyway) decides on your engineering knowledge based on what you have sealed, not on what is built. The courts decide who is at fault for what is built and how. Perhaps I should of used responsible in place of liable.

Garth Dreger PE
AZ Phoenix area