It’s important for all civil engineers to know some important facts of civil-engineering life. The more of these facts you’re aware of, the less risk you have to deal with, which is why, in well-run firms, the following facts are “old news” to every professional on staff:
Fact — The people who decide what you should or should not have done on a project, and whether or not you performed negligently, seldom know anything about civil engineering.
Fact — You do not have to be licensed or certified to be sued for professional negligence.
Fact — As a professional, you are personally liable for your own professional acts and the professional acts of those you supervise. “Professional acts” include writing and speaking.
Fact — Your personal liability can outlast your firm’s liability — your firm’s going out of existence does not relieve you of personal liability.
Fact — Many corporate entities, especially limited liability companies (LLCs), dissolve themselves out of existence once a project is complete. As such, when a problem is discovered, civil engineers may be among the only parties left to sue because of their personal liability.
Fact — As a professional, you owe a duty of care to every party that foreseeably could be injured or damaged by your negligent acts. For example, if you do the civil engineering for a housing development, you owe a duty of care to every homeowner.
Fact — Your personal liability may outlast you! (Your estate can be sued for your alleged negligence.)
Fact — Although your employer may have professional liability insurance (PLI) in place, the cost of defense and judgments could exceed the limits of the PLI policy. If your employer does not have the resources to cover all claims expenses stemming from your alleged negligence, you feasibly might have to cover some on your own.
Fact — When you moonlight, you become 100-percent liable for all your independent professional acts. If you moonlight without having your own PLI in place, you could be taking a huge risk. The volunteered services you provide in your professional capacity — be they on behalf of a religious group, community organization serving the homeless, an animal shelter, or some other worthwhile cause — all are considered moonlighting, unless you are performing on behalf of the organization that employs you.
Fact — Even a community organization you provide civil engineering services for at no fee may have to sue you to retain its own insurance protection. For the same reason, you might have to sue the community organization.
Fact — A written agreement in which your client agrees to not sue you even if you are negligent is generally of no help at all.
Fact — All projects you perform are governed by a contract. If you have not committed the contract to writing, a judge or jury will tell you exactly what it says.
Fact — Providing flawless instruments of professional service is not the best defense against claims. (What is and what are you doing about it?)
Fact — In most states, parties other than your client (i.e., third parties such as contractors when your client is the owner) cannot file a professional negligence claim against you for purely economic damages (damages unrelated to personal injury or property damage). Nonetheless, third parties in many states can sue you for negligent misrepresentation (negligently misrepresenting that the instruments of professional service you developed incorporated no negligent errors).
Fact — Although most civil engineers do not like to write, they are more liable for what they write than most other professionals. You need to know why “certify” and related words can create far more risk than alternatives, and why the additional risk usually is uninsurable. You also need to know why those who claim that their firms offer “full service” or adhere to the “highest standards” are creating needless risks for themselves.
Fact — Although most civil engineers provide a wide array of deliverables as written documents, the vast majority do not know how to proofread.
If you already knew all this, great; chances are you’re applying your knowledge and running a better business as a result. If you didn’t already know all this and want to learn more, you should take advantage of the copious programs and materials available (www.asfe.org is one place to start). And if you didn’t already know all this and even if you don’t care to learn more, you still will — the hard way.
John P. Bachner is the executive vice president of ASFE/The Geoprofessional Business Association, a not-for-profit association of geoprofessional firms — firms that provide geotechnical, geologic, environmental, construction materials engineering and testing (CoMET), and related professional services. He can be contacted at firstname.lastname@example.org.