Claims Retrospective—Beware of Jobs, Requests, or Favors that Are Touted as “Simple” or “Quick.”
By Sarah A. Johnson, Esq.
It is not unusual for engineers to perform a “simple” job for which they are paid little to nothing. Many times, the “simple” job is a favor for a client, former client, friend, or even an acquaintance. It usually starts with a request that the engineer come “take a look at” something and ends in a request that the engineer provide opinions or comments about the same in the form of a written letter or document, or preliminary sketches, drawings, or plans.
Examples include contractors or owners who want the engineer to provide an opinion on things like whether a structure is sound or whether certain work or circumstances are not, or will not be, the cause of property damage. These situations usually involve only visual observations, and the engineer has limited to no information about the history of the subject structure or project. As a result, careful engineers often put limiting language in the requested letter and/or other written documents, describing the limitations on their services and placing caveats on their opinions.
Nevertheless, these “simple” jobs are often the subject of claims and even litigation against the engineer. This is because, more often than not, the letters are being provided to a third-party, such as a prospective purchaser or owner of property, so that the third-party can make a decision regarding the property. For example, a prospective purchaser may rely on the letter in purchasing the property, or an owner may rely on the letter when deciding whether to proceed with construction, repairs, or renovations, or whether to pay their contractor, release retainage, etc.
If the third-party purchaser or owner experiences any problem with the property or structure after purportedly relying on the engineer’s letter, the engineer will likely find themselves defending a claim or lawsuit for negligent representation. In these circumstances, the purchaser or owner usually alleges that the engineer’s representations in the letter were false, or at least incorrect, and that they relied on the engineer’s representations to their detriment.
A further example of a job that is often described as “quick” or “easy” is where the contractor, other design professional, or owner asks the engineer for some “ideas” as to how to handle a particular issue. In this case, the engineer may provide preliminary sketches, drawings, or plans to the inquirer to simply show some of the options available. However, the inquirer, unbeknownst to the engineer, then uses these preliminary sketches, drawings, or plans in constructing some structure or portion thereof.
Not surprisingly, there are often problems with the finished product, as the preliminary drawings do not include all of the details and information necessary to actually build the structure. Thereafter, the client or owner often blames the engineer for the problem with the structure, even though the preliminary drawings were never meant to be used for construction.
All jobs, requests, and favors touted as simple or quick by the requesting party should be approached with caution. The engineer should ask the requesting party what any work product will be used for and determine whether engaging in the services requested is worth the risk that the engineer is taking in providing the same, understanding that the engineer’s work product may not be used as represented by the requesting parties.
In many instances, it may serve the engineer best to simply turn down the requested services. After all, the engineer is often paid little to nothing for them. If the engineer proceeds with providing the requested services in order to obtain the payment or the goodwill associated therewith, they should make sure to place limiting language on any letter or report. The engineer should explain the purpose of the report, who the intended audience is, the basis for the engineer’s opinions, and the limitations on what they were able to observe. The engineer should also clearly disclaim any warranty or guarantee.
Likewise, the engineer should make it clear in writing on the face of any preliminary sketches, drawings, and plans that the documents are conceptual only and are not intended to be used for anything other than discussion, and they are certainly not intended to be used for construction.
