Engineer’s Duty to Warn Limited to Contract Undertakings

In a decision guaranteed to get the attention of professional liability insurers throughout the United States, an appellate court in Pennsylvania has just published an opinion holding that an engineer has absolutely no obligation to warn the public of a potentially catastrophic environmental harm, even when the firm becomes aware of the danger in the course of a professional undertaking specifically intended to identify the environmental harm.

Sound crazy?  It is.

In Reeser v. NGK N. Am., Inc., 2011 PA Super 17 (Pa. Super. Ct. 2011) the Pennsylvania Superior Court ruled thatSpott, Stevens & McCoy (“SSM”), an engineering firm retained by NGK Metals Corporation to monitor toxic emissions from a beryllium plant, had no duty to report findings that  beryllium particulate emissions belching from the plant “significantly exceeded” EPA limits to either the EPA or to members of the public. The Superior Court based its decision on a strict reading of the SSM contract as not creating a contractual professional duty to warn the government or the public.

This opinion is in keeping with Pennsylvania’s view, at least with respect to construction workers, that absent a contractual undertaking to warn, a design professional has no duty to warn, even if the danger is imminent and deadly.Herczeg v. Hampton Township Municipal Authority and Bankson Engineers, 766 A.2d 866 (2001).  This view, however, contrasts with other jurisdictions holding that where an engineer observes and has actual knowledge of a dangerous condition, the engineer has a duty to exercise reasonable care to the worker. Carvalho v. Toll Brothers and Developers, 675 A.2d 209 (N.J. 1996).

But what about duties and dangers that transcend worker safety and potentially impact the public at large?

Since my days in engineering school I’ve been taught that engineers owe a duty to the public at large when their professional undertakings touch upon public safety. Makes sense – if you perform services that impact the health and welfare of the public – whether designing a bridge or tunnel, or providing professional advice on a process or facility that in turn impacts the public – then you should be accountable to the public.

This principle is memorialized in professional ethics codes throughout the land.  A “Fundamental Cannon” of the ethical code of the the American Society of Civil Engineers states that ” Engineers shall hold paramount the safety, health and welfare of the public . . . in the performance of their professional duties.”  ASCE’s ethical guidance on public safety is echoed in all of the major discipline societies, including:

In view of these “professional standards,” it is difficult to reconcile the position of the Pennsylvania Superior Court stating that if the standard isn’t contained in the contract, you have no obligation to perform.

Practice Pointer :  Clearly legal duties exist that are independent of those agreed to in a contract, and it seems improvident to assume otherwise.  When analyzing your potential risks on a project (even one in Pennsylvania), inventory your work scope to determine whether or not a contractual undertaking touches upon a service or a product that could potential impact the public. If so, discuss this risk with your professional liability carrier and make sure that appropriate risk shifting mechanisms are utilized in your contract.

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