Engineering Standard of Care
The standard of care for engineers, and whether it has been breached comes up in all kinds of cases. We have represented clients that fabricated a part that failed and the ensuing dispute was about whether it was designed properly (engineering), fabricated properly (manufacturing), or installed properly (end user). We have also represented engineers seeking to be paid for their work where a counterclaim of engineering malpractice is asserted as a defense to owing the engineering fees. Each one of these cases comes down to, what is the standard of care in Wisconsin for an engineer?
There is no statutory or even specific common law definition of what the exact standard of care is in Wisconsin. In general, the rule is just what would other engineers do in a similar situation. For a jury trial we had previously, we adopted Jury Instruction 1023.7 which is a Professional Negligence instruction written for medical technicians. However, it gave a frame work for the Jury to understand how to look at what the engineer did in the case.
Wis. JI-Civil 1023.7 PROFESSIONAL NEGLIGENCE: ENGINEER
At the time in question, [Engineering Firm X] was an engineering services entity. As an engineer, it was [Engineering Firm X]’s duty in providing engineering services to [Customer Y] on the [Project Z] project to use the degree of care, skill, and judgment which reasonable engineers would exercise in the same or similar circumstances, having due regard for the state of learning, education, experience, and knowledge possessed by engineers at the time in question. An engineer who fails to conform to this standard is negligent. The burden is on [Customer Y] to prove that [Engineering Firm X] was negligent.
How is the Engineering Standard of Care applied in Wisconsin?
While there are specific instructions for all sorts of professionals, registered Nurses, Licensed Technicians, Physicians, Lawyers, Insurance Agents, Dentists, there is not an instruction specific to Engineers, but the concepts are applied the same. A key aspect of any definition of malpractice or failure to live up to the standard of a profession is defining what it is not. The Jury instructions for other professional conduct is illustrative:
An engineer is not negligent solely because a bad result may have followed the services performed on the [Project Z] project. The standard you must apply in determining if [Engineering Firm X] was negligent is whether [Engineering Firm X] failed to use the degree of care, skill, and judgment which a reasonable engineer would exercise at the time the service was rendered. – Wis. JI-Civil 1023.7 – Professional Negligence
This makes sense, the test for whether an engineer did their job properly cannot be based on the results alone. Obviously in all professions there are sometimes unfortunate outcomes despite appropriate and competent work. The test is really applied with the litmus test of whether the engineer in questions “used the degree of care, skill, and judgment which a reasonable engineer would exercise at the time the service was rendered.” So, how does a jury figure out what a reasonable engineer would have done? The Jury instruction sheds some light on that as well.
You have heard considerable testimony during this trial from experts in the field of engineering who have been called as expert witnesses by both sides. The reason for this is because the degree of care, skill, and judgment which a reasonable engineer would exercise is not a matter within the common knowledge of laypersons. These standards are within the special knowledge of experts in the field of engineering and can only be established by their testimony. You, therefore, may not speculate or guess what those standards of care, skill, and judgment are in deciding this case, but rather must attempt to determine this from the expert testimony that you have heard during this trial. In determining the weight to be given an opinion, you should consider the qualifications and credibility of the expert and whether the reasons for the opinion are based on facts in the case. You are not bound by any expert’s opinion. – Wis. JI-Civil 1023.7 – Professional Negligence
Practically speaking this means that in almost any case involving an allegation of engineering malpractice an expert witness is necessary to establish what the standard of care is (ie, what a reasonable engineer would have done in that situation) and how the facts in the particular case apply to show whether that standard was met. However, engineers solely work in isolation, how does their standard of care interplay with the other contractors who may have been on a project?
What standard applies to contractors and sub-contractors in Wisconsin?
Any time there is an allegation of negligence, the concept of contributory negligence comes into play. This is the concept that a series of events may be caused by the negligence of more than one party, and so how their negligence compares has to be applied. To do that, just like we did for the engineer, we need to instruct the jury on what the standard of care is for the contractors involved in the project at issue. In our recent case we again turned to the jury instructions, and while that case was not about a building, the jury instruction for building contractors was deemed appropriate by the Court.
1022.4 NEGLIGENCE: BUILDING CONTRACTOR
[Customer Y] as the contractor for the [Project Z] has a duty to exercise ordinary care in the construction or remodeling of the [Product A]. This duty requires such contractor to perform work with the same degree of care and skill and to provide such suitable materials as are used and provided by contractors of reasonable prudence, skill, and judgment in similar construction or remodeling.
It does not mean these exact instructions would be adopted by the Court for all engineering cases, but in the case where the Court used these instructions, we represented the engineer, and got a full jury verdict in our clients favor awarding him every penny we asked for in the case. While the facts ultimately make or break the outcome of every case, setting up the instructions to the Jury the right way can go a long way towards a favorable outcome.
What can you do if you have a case involving an Engineering Firm?
While every case is unique, is going to depend on what the parties agreed to, and what responsibilities the engineering firm took on, there are numerous potential remedies or strategies to help resolve a dispute. If the issue cannot be resolved with direct negotiations, bringing counsel in to try and sort out the dispute can be necessary. We always hope to resolve any of these disputes without filing suit, but strive to be prepared if a lawsuit is necessary. We have represented clients in cases on behalf of and against Engineers and are willing to help with your case. We can also potentially do these types of commercial litigation disputes on a Flat Fee, you can learn more about that program here, www.hallingcayo.com/flatfee.
If you are an engineer with a dispute or you have a dispute with an engineer, call us for a free consultation to see if it is something we can help you resolve.
Sean M. Sweeney is a shareholder at Halling & Cayo. His practice focuses on business litigation, offering flat fees for business litigation, and recovering investors losses as a result of stock broker fraud on contingent fees. Sean represents investors in FINRA Arbitrations and companies in Wisconsin, all over the United States, as well as internationally with clients in Canada, Germany, and Australia.
Email Sean: [email protected]
www.The-Securities-Lawyers.com : www.HallingCayo.com/Flatfee