Meeting the Standard of Care

This article examines the standard of care in everyday structural engineering practice, focusing on its relationship to applicable codes and standards. Its purpose is to help engineers improve their professional practice and reduce exposure to negligence claims. It does not address the nuances of contract or agreement language.

Customarily, the standard of care for an engineer is defined as the level of skill, judgment, and diligence that reasonably prudent engineers would exercise under similar circumstances, at the same time and in the same locality. Most claims against engineers arise from alleged negligence, or a failure to meet this standard.

This definition, however, offers limited practical guidance in everyday practice, as few structural engineers can clearly define what constitutes a “reasonably prudent” engineer, and the phrase “similar circumstances” provides only vague criteria.

A more practical, non-legal formulation is this: the design professional is expected to provide structural engineering services in accordance with established expectations. This framing offers clearer direction, as it encompasses the expectations of your client, the owner, the contractor, and society. The objective, therefore, is to understand, manage, and meet these expectations, which may at times compete.

In defending an engineering negligence claim, a plaintiff’s expert will often assert that the standard of care was breached because the engineer failed to comply with a “standard.” However, not all standards are equivalent; they carry different legal weight and should be understood within a hierarchy.

The building code is law. It is adopted by a jurisdiction (city, county, or state), and enforced by the building official. Compliance is mandatory. By definition, a violation of the building code is strong evidence of performance below the standard of care and may support a finding of negligence. However, conformance with the code is not always an adequate defense of a negligence claim.

A consensus standard is a technical document developed through a formal, balanced process. Organizations such as ASTM International, the American Society of Civil Engineers, The Masonry Society and the American Concrete Institute publish these documents through committees representing multiple stakeholders (engineers, industry organizations, regulators, and academics) using an accepted and standardized balloting and vetting process. When incorporated by reference into the building code, these standards carry the force of law, just like the code. Even when not formally adopted, failure to follow a widely-recognized consensus standard may be cited as evidence of a deviation from the standard of care.

A standard, in the broader sense, is a less precise term and may vary in authority. While standards are often useful guides for practice, they do not automatically establish the legal standard of care unless they are widely accepted and used within the profession locally or incorporated into codes, regulations, or contracts.

A committee report provides guidance rather than requirements. Published by technical committees—often the same bodies that develop consensus standards—these documents offer background, commentary, recommendations, and suggested best practices. They are typically written in non-mandatory language. In litigation, committee reports are frequently used by experts to argue what was “known” or “reasonable” at the time of design. While they may inform the standard of care, they do not, standing alone, establish it—the essence of the “you should have known” argument.

In a claim involving a multi-story condominium with a concrete frame and post-tensioned floors, the engineer was found negligent, in part, for failing to follow the ACI 435 committee report, titled Control of Deflection in Concrete Structures.

The project was constructed by a well-known contractor who routinely accelerated schedules by reducing the reshoring interval, justifying the practice by raising the concrete strength above the specified design strength. The engineer accepted this approach, and the construction schedule was accelerated.

As often happens, deflections were beyond normal, resulting in a claim. During litigation, the plaintiff’s expert argued that the design itself was deficient because the deflection analysis did not conform to the ACI 435 committee report. The expert testified that the report carried equivalent legal weight to the building code because it was authored by the same people. The plaintiff prevailed in arbitration, and the engineer paid the claim even though the more direct cause of the issue was likely the decision to permit accelerated construction.

The engineer did not meet the expectations of the client and owner. As is often the case, the engineer’s decision to accept an accelerated schedule resulted in unacceptable consequences. The technical knowledge connecting an accelerated schedule to increased deflection lies with the engineer. Yet the average engineer may lack the experience necessary to recognize this relationship and might reasonably make the same decision.

We will become better engineers if these situations, and the lessons learned from claims, are openly shared within our profession.

Building codes, often written by engineers rather than legislative drafters, do not always provide precise or unambiguous direction for project design. Reasonable experts can and often will disagree on their interpretation. In negligence claims, this can lead to a “battle of the experts,” where the outcome is ultimately decided by non-engineers who lack technical training.

Consider a deflection claim for a floor system with 20-foot by 20-foot bays and columns at each corner. A code provision limits the total load deflection (D+L) to L/240, where L is the length between supports. But what is the correct length for evaluating deflection at the center of the bay? Is it 20 feet, the distance between adjacent columns, or 28.3 feet, the diagonal distance across the bay?

Compounding the ambiguity, many code provisions include qualifiers such as: deflection limits may be exceeded if adequate measures are taken to prevent damage to supported or attached elements.

When problems arise, experts can often identify and assert a code violation based on one of several plausible interpretations.

The project was a speculative office building development, six stories in height, intended for multiple tenants. Floors three through six were to be configured with tenant-specific layouts. On the second floor, an exercise room was planned with traditional fitness equipment. The structural system consisted of a steel frame with open-web steel joists supporting the floors. The building code prescribes a live load of 100 pounds per square foot, along with associated deflection limits.

The engineer relied on code-prescribed deflection limits as the governing design criterion. The project was completed and constructed accordingly. Within the first year of occupancy, however, the owner received persistent complaints of unacceptable building vibrations. The structure was responding to motions originating in the exercise facility, which propagated throughout the building.

The owner filed a negligence claim against the structural engineer. The plaintiff argued that mere conformance with the building code was an insufficient defense. The engineer settled the claim in mediation and agreed to fund modifications to increase the stiffness and mass of the second floor.

This example illustrates that compliance with the building code alone is not an adequate defense in a negligence claim. Plaintiffs often advance a “you should have known” argument, which can be persuasive when prior experience or reasonably foreseeable conditions are involved.

Again, the engineer did not meet the expectations of the client and owner. The technical knowledge connecting the exercise-room harmonic excitation to the response of the rest of the building rests with the engineer. Yet the average engineer may lack the practical experience necessary to recognize this relationship and anticipate its consequences.

This is precisely why these situations, and the lessons learned from claims, should be openly shared within our profession. We should not expect every engineer to learn these lessons through personal experience or, worse, through a claim. Sharing claim experiences allows the profession as a whole to learn from individual mistakes and avoid claims.

The practice of structural engineering requires making numerous design decisions on a daily basis. Recommendations for avoiding negligence claims should be considered in the context of the specific situation at hand, not followed blindly. While such recommendations can provide a useful starting point, the best course is often to discuss the issue with other experienced engineers and, when appropriate, consult your insurance agent or an attorney. It should be recognized, however, that the advice of such agents or legal counsel does not always align with sound professional practice and therefore should be considered with appropriate professional judgement and discretion.

Your design should comply with the codes and standards applicable to the project’s location and in effect at the time of design. These requirements, along with your client’s expectations for the project, should be clearly identified and coordinated with all project participants, particularly your client and owner. It is advisable to explicitly list the applicable codes and standards, and project specific design criteria, in your professional services agreement. Avoid accepting broad language such as requiring conformance with “all” or “any” codes and standards. Also include what you are not going to do, unless the client authorizes an additional service (such as a vibration analysis described above).

Applicable codes and standards establish minimum requirements and reflect the lowest acceptable level of performance. Meeting the applicable code is therefore not necessarily sufficient to meet the client’s expectations or the standard of care for a particular project. Designing above these minimums is often appropriate, particularly when modest increases in cost yield substantial improvements in performance or when it is common practice in your locale. Conversely, a “sharp-pencil” design that technically complies with the applicable codes and standards but results in lower-than-expected performance may be difficult to defend if it fails to meet the client’s reasonable expectations.

Internal design reviews, both during development and at completion, are highly recommended and should include verification of conformance with applicable codes and standards. A codes and standards checklist can be a valuable tool in this process.

In the event of a claim alleging violation of a code or standard (after first notifying the insurance carrier), retain a defense expert familiar with the development, intent, and evolution of the provisions at issue. Many codes and standards identify contributing individuals in their acknowledgment sections, which can be a useful resource in identifying knowledgeable experts.

Finally, if you have experienced a negligence claim, consider sharing the lessons learned with the rest of us. Sharing these experiences can help other engineers recognize situations in which simply following a code or relying on customary practice may not be enough to meet the expectations of the client or the needs of the project. Our profession becomes better when we learn from one another’s experience. ■

John Tawresey is a co-chair of the ASCE Committee on Claim Reduction and Management Co-Chair, Former SEI President, SEI Business and Professional Practice Division Chair, SERMC President and Claim Committee Chair, and President The Masonry Society.