ANÁLISIS FACTORIAL CONFIRMATORIO (AFC)

Page AVOIDANCE OF LIABILITY . . . 3-1 NEGLIGENCE . . . 3-2 NEGLIGENT MISREPRESENTATION . . . 3-3 INTENTIONAL MISREPRESENTATION AND CONCEALMENT . . . 3-4 STATUTE OF LIMITATIONS . . . 3-4 PROBLEMS WITH JURY DEFINITIONS OF REASONABLENESS . . . 3-4 SUGGESTIONS FOR IMPROVING THE DEFENDANT

PROFESSIONAL'S PROSPECTS . . . 3-5 Loss Prevention . . . 3-5 Environmental Work Certification . . . 3-6 SELECTED REFERENCES . . . 3-7

¹Adapted mainly from AEG Special Publication article by J. H. Patton, Jr., in "Geology, Seismicity PROFESSIONAL LIABILITY¹

by

James H. Patton, Jr., Attorney and Geologist and

Phillip K. Fife, Attorney with section on Loss Prevention by

Glenn A. Brown revised 1992 by Stephen L. Garrison

AVOIDANCE of LIABILITY

If you offer professional services to the public, there is a substantial possibility that you will be sued for malpractice during the course of your career, regardless of how carefully you conduct your work.

Indeed, one is fortunate if he or she is involved only in a single suit. Claims arising from alleged professional malpractice are on the increase across the country. Not only geologists, but engineers of nearly all specialties, doctors, attorneys, dentists, accountants, real estate brokers, investment brokers, insurance brokers, and many others have been affected by the upsurge in malpractice litigation. Insurance, which is essential to protect your assets, often makes the professional the target of suits seeking "deep pockets".

The current trend in public policy is toward protection of the consumer. The days when caveat emptor (let the buyer beware) reflected public policy are doubtless gone forever.

There is no absolute way in which the engineering geologist can avoid liability. There are no magic words or trick phrases to be put in a professional report to avoid the possibility of being sued. Often the use of cleverly worded reports to avoid facing a problem head-on or to assist the client to obtain a building permit will form the basis for a suit against the engineering geologist.

Remember that the first duty of an engineering geologist is to himself or herself as a professional.

The engineering geologist is not an advocate for the client who should present the client's position in the best possible light, but has a duty to make a complete and objective evaluation. Project cost estimates should not be permitted to limit the scope of an investigation when good professional

and the client would not authorize the additional expenditure. If something goes wrong on a project, the client is usually the first to point an accusing finger at the engineering geologist as the expert who they relied upon for guidance. If the client refuses to authorize necessary additional work, any report for the client should note the necessity of such work and recommend that it be accomplished.

Examine all available data before expressing an opinion. Consider the impact of future developments on your project. Express yourself clearly and precisely in your professional reports. Document everything fully, using photographs where appropriate. Be conservative in your professional evaluations and opinions, recognizing that you are dealing with imperfect natural conditions and not with mathematical equations. Remember that there is no substitute for a well-documented professional job. All that is required to file a suit is a complaint and filing fee. Defending against the potential lawsuit is a portion of the professional's normal overhead costs.

A good speech that is given to entering first-year law students goes something like this: "So you've come to a noble and high profession, have you? So you've come to law school to learn great things and to be very important to society. Well you are crazy! That's not what you are here for at all. The courts, although they have very high front steps and use lots of mahogany, are kind of a trash bin of society. Nobody comes to court unless they have failed to work things out on their own. The court is a depository of the losers, not the winners. When all other human systems for solving conflict fail, then the courts come into play."

NEGLIGENCE

The most common theory of liability alleged against engineering geologists is negligence. Negligence is the omission to do something which an ordinarily prudent person would have done under similar circumstances or the doing of something which an ordinarily prudent person would not have done under those circumstances. An engineering geologist is required to exercise that degree of care and skill ordinarily exercised in like cases by reputable members of his profession practicing in this or a similar locality at the same time and under similar conditions. They have the duty to exercise ordinary care in the course of performing their duties for the protection of any person who foreseeably and with reasonable certainty may be injured by their failure to do so. It should be noted that inappropriate contract language can impose a higher standard of care requirement. The engineering geologist should avoid statements in their proposals that include superlative adjectives in work scope items. Terminology such as "best, all, highest available degree of accuracy, most and least expensive"

should be avoided.

Although failing to comply with a state statute or with county or municipal ordinances normally is considered to be negligence per se, the mere compliance with the letter of the law in such cases does not necessarily relieve one of liability, since it generally is recognized that statutes and ordinances set forth only minimum requirements, and circumstances may require more than the minimum. An engineering geologist cannot rely upon the approval of a project by an inspector for a governmental agency to relieve them of liability.

they fail to fully appreciate the impact of geologic features, such as the relationship of joints or faults with bedding planes, upon the proposed development. In such cases it is alleged that they could have determined the existence of the landslide if the engineering geologist had examined old aerial photographs and maps, had placed the exploratory excavation in different locations or had made them deeper. Unfortunately, engineering geologists, like most other professionals, are blessed with excellent hindsight, and a plaintiff's attorney will have little difficulty in finding another engineering geologist to interpret the cause of the problem and to explain to a jury how their predecessor did not comply with the standards of practice for engineering geologists.

Quite often, equally competent geologists evaluating the same data can arrive at widely differing interpretations. Over the past several decades, the practice of engineering geology has been evolving and standards of practice in the community have been in a state of change. The standard of practice of engineering geologists generally has been directly tied to the applicable building code, which may differ from county to county and from city to city within the same county. Failures often don't occur until years after completion of the project. By that time the practices of engineering geologists have improved, based upon lessons learned from past experiences. Many individuals, including engineering geologists, tend to confuse time, and often it is extremely difficult, if not impossible, to recall what was done years before. The plaintiff's attorney tends to attempt to apply current standards of practice to work done years before, often with the assistance of an expert. An attorney representing a defendant engineering geologist in such cases must constantly guard against this, and must be familiar with the evolution of engineering geology.