Session Description
On February 8, 2024 at the University of Texas, Austin, the topic of the Panel Discussion was “The Duty to Warn.” Six ASCE Forensic Practice Committee Member panelists with forensic engineering and expert witness experience engaged in a discussion concerning the topic, our perceptions of how it is understood by engineers and by the general public, and how it relates to the professional responsibilities of engineers.
The discussion included several specific scenarios intended to elicit participation from the audience and provide guidance regarding what a reasonable engineers responsibility is regarding the Duty to Warn. The discussion included example state laws regarding the subject and their applicability. There was ample time to answer questions and respond to comments from attendees.
The “Duty to Warn” is a term engineers may be aware of, but many do not understand what it means; when and to whom to direct a warning, what is an acceptable warning, or how it may affect their practice. A clear understanding of the Duty to Warn can help an engineer avoid or defend against claims of professional negligence which may result in censure, licensure issues, loss of clients, loss of position, or litigation – all possibly arising from one’s unknowing deviation from established norms or local regulations.
The Panel
- Moderator: Derrick S. Hancock, P.E., M.ASCE – derrick.hancock@nv5.com
- Presenter: Lloyd M. Sonenthal, LTD, P.E., M.ASCE – lloyd6943@prodigy.net
- Presenter: Leonard J. Morse-Fortier, Ph.D., P.E., M.ASCE – LMFortier@sgh.com
- Presenter: Joshua B. Kardon, PhD, SE, F.ASCE – jbkseco@gmail.com
- Presenter: Michael Drerup, P.E., M.ASCE – mike@drerupllc.com
Attendees to the panel discussion learned what the concept of “Duty to Warn” is, what obligation an engineer has regarding duty to warn, and how, why, where, and to whom to direct a warning. Beyond the duty to warn, there was a discussion on what constitutes an adequate warning.
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Public safety priority:This principle stems from the core ethical responsibility of engineers to prioritize public safety and welfare above all else, as outlined in most engineering codes of ethics.
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Identifying potential harm:When a forensic engineer investigates an accident, structural failure, or other incident, they must identify any potential hazards that could cause future harm if left unaddressed.
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Appropriate disclosure:Depending on the severity of the risk, the engineer might need to issue a formal “hazard condition letter” to the property owner, notify relevant authorities, or take other steps to ensure the potential danger is mitigated.
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Legal implications:Failure to warn about a significant safety issue could lead to legal liability for the forensic engineer if someone is harmed as a result of the undisclosed danger.
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Damaged building structure:If a forensic engineer investigating a building collapse discovers structural weaknesses in another part of the building that could potentially lead to further failures, they must inform the building owner and relevant authorities.
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Product defect causing injury:In a product liability case, if a forensic engineer finds a design flaw in a product that could cause harm to users, they must inform the manufacturer and potentially regulatory agencies.
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Confidentiality agreements:In some cases, a forensic engineer may be bound by confidentiality agreements with their client, but the duty to warn can still apply in situations where a serious safety risk is present.
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Jurisdictional laws:The specific legal requirements regarding a duty to warn can vary depending on the jurisdiction.
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Communication with clients:Open communication with clients about potential safety concerns is crucial to ensure they understand the implications of the findings and take appropriate actions.