Engineering Malpractice: Avoiding Liability through Education

1. Forpresentation at the 2006 Annual AIChE Meeting, San Francisco, CA Engineering Malpractice: Avoiding Liability through Education Martin S. High, P.E., Ph.D., J.D# Paul E. Rossler, P.E., Ph.D@ Legal Studies in Engineering Program Oklahoma State University Stillwater, OK 74078

2. Negligence Basics In any context, the requirements to prove negligence (and the situation we are trying to avoid at the outset area) are: • Plaintiff has a duty to defendants • Plaintiff has breached that duty • Defendant’s injury is a proximate cause of Plaintiff’s breach • Defendant suffered an injury CEAT - Legal Studies in Engineering Program

3. Duty • In general, everyone is under a duty to all persons at all times to exercise reasonable care for their safety# • Under negligence, one owes a duty of care to only foreseeably harmed parties – their must be some reasonably recognized duty to another party. • There must be some relationship between the two parties • Duty is a matter of law (decided by the judge), not fact (decided by the jury). #Edward J. Kionka, Torts, West Group, 1999. CEAT - Legal Studies in Engineering Program

4. Degrees of Care • Common carriers and those responsible for dangerous instruments or acts (some engineers) owe a “high degree of care.” • However, in general, the degree of care depends always on the facts of the circumstances and therefore varies • Surgery requires a higher degree of care than driving a car • Driving a car requires a higher degree of care than operating an electric knife. CEAT - Legal Studies in Engineering Program

5. Breach • Breach follows easily once the existence of a duty is breached. • If duty is breached, the breaching party is “negligent,” but not necessarily liable CEAT - Legal Studies in Engineering Program

6. Causation • Cause-in-fact • Did the breach actual cause the injury, or • “but for” the negligent party’s act the injury would not have occurred • Legal cause • Liability limited due to policy considerations – the injury was too unforeseeable • Although Mrs. O’Leary was negligent in the placement of her lantern, we are not going to hold her liable for the entire city of Chicago CEAT - Legal Studies in Engineering Program

7. Injury • There must be some injury • Products liability requires personal, as opposed to economic, injury CEAT - Legal Studies in Engineering Program

8. Engineering Malpractice Defined • Engineering malpractice liability is a subset of professional liability directed towards engineers. • Engineering malpractice uses the same concepts of negligence to determine liability. • Specifically, if an engineer is negligent, and this negligent conduct is the proximate cause of the injuries, then the engineer is liable for engineering malpractice. • The standard of care is that “normally possessed by members of [the] profession . . . in good standing.” • A higher standard applies if the engineer represents that he has greater or less skill or knowledge” than that normally possessed by members of the profession. CEAT - Legal Studies in Engineering Program

9. Engineering Malpractice Defined • Professional negligence is the failure to exercise that degree of care and skill which is exercised by reasonably well-qualified professionals in that field. • Some jurisdictions require professionals to exercise the care that the reasonably well-qualified professional ordinarily and customarily does in fact. • In yet some jurisdictions, a professional only has to exercise the care of other reasonable professionals in that locality – this concept is quickly fading into history as we become more interconnected. • Informed consent can sometime excuse tortious conduct CEAT - Legal Studies in Engineering Program

10. Products Liability • Historically a manufacturer could be found to be liable for harm done by a product under negligence and breach of warranty • Products liability, a strict liability theory, is a related theory to negligence • Under Products liability a manufacturer (and subsequent dealers of goods) are given to have a duty to produce defect-free products and that duty is breached CEAT - Legal Studies in Engineering Program

11. How do we educate away from professional negligence? • Teach the concept of negligence and strict liability • Explain and demonstrate the concept of “degree of care and skill which is exercised by reasonably well-qualified professionals in that field.” • Show examples of care that fall below this standard • Ethical violations are published, but are typically civil engineering specific • Current events commonly provide amble topics of discussion of reasonable degree of care (e.g., Boston’s Big Dig@) @One of Engineering's Biggest Mistakes? Engineers are posting their two cents across the Internet, Design News, 4 September 2006 CEAT - Legal Studies in Engineering Program

12. Why a LSE Curriculum? • Our goal is not to morph good engineers into bad want-a-be lawyers • Engineers constantly encounter legal issues in their careers • Daily encounters with contracts, regulations, employment issues • Less frequent, but more critical, encounters with depositions and court proceedings • “Sending an engineer into the workforce with no legal training is like sending him or her out without learning calculus” – OSU CEAT Associate • Engineers make excellent attorneys and our society desperately needs more technically astute lawyers. CEAT - Legal Studies in Engineering Program

13. What do we teach in LSE? • One broad-based course – “Soup-to-nuts” • Three topical courses relevant to technical professionals • Intellectual Property • Environmental Law • Products Liability CEAT - Legal Studies in Engineering Program

14. How do we teach LSE? • Soup-to-nuts course is based on Cynthia M. Gayton, Richard C. Vaughn, Legal Aspects of Engineering, 7th ed., Kendall-Hunt Publishing Co., Dubuque, IA (2004). • Topical Courses are based on law school level case books • Students have responded extremely favorably to use of case books even though the amount of reading is significantly more than in traditional engineering courses • The legal education Socratic method based on case law is heavily used. • Students discuss cases with the instructor and themselves to learn the points of law CEAT - Legal Studies in Engineering Program

15. LSE Program Goals • Again, one of our goals IS NOT to morph good engineers into bad want-a-be lawyers • Incorporate instructional materials that prepare students for the ever expanding role of legal issues into science and engineering practice; • Aid the learning of science, technology, engineering and mathematics by placing those disciplines in the context of the legal responsibilities imposed by society; • Address directly the important opportunity and need of educating future technical professionals on the role of the law in technology endeavors; and, • Produce materials that students and practicing professionals find useful in practice. CEAT - Legal Studies in Engineering Program

16. Copies of the manuscript are available at the back of the room and the slides and manuscript are available at http://mhigh.okstate.edu CEAT - Legal Studies in Engineering Program