Professional Practices: Computer-Generated Liability

Under the banner of progress, those involved in funding the construction of buildings push for projects to be built bigger, faster and less expensively. Designers typically meet this demand by maximizing production capabilities through the latest technology. However, when the technology fails...

01/01/2002


Under the banner of progress, those involved in funding the construction of buildings push for projects to be built bigger, faster and less expensively. Designers typically meet this demand by maximizing production capabilities through the latest technology. However, when the technology fails, the effects can be devastating.

Society relies on computers for critical tasks, despite a history of defects that would normally be intolerable for other products. As a matter of fact, it is not uncommon for a software application to be sold with as much as 65% of its code untested. But due to limitation of liability terms applicable to the purchase of most commercial computer software, potential losses will not necessarily belong to the party that caused the mistake—the vendor of the hardware or software. Rather, such risk falls on the architect, engineer, contractor or owner.

This means that it is incumbent upon the engineer to practice caveat emptor —"let the buyer beware." Consequently, it's important to keep the following points in mind:

  • Bugs . Computer tools sometimes have latent bugs that can produce intermittent anomalies, and may not be readily observable by the user. Therefore, some form of output checking should occur, since verifying the accuracy of the program may be otherwise impossible.

  • Missing manuals . Computerized tools, more often than not, come with minimal training and support. In the early days of construction-industry computerization, software applications were sold along with extensive training and support. Today, the trend has been to eliminate the "middleman," and programs are often downloaded off the Internet, without the benefit of a knowledgeable salesperson who can offer valuable guidance.

Graphical interface

Because a software design goal is often to have common graphical interfaces across programs, these interfaces can mask assumptions. As a result, users may not understand the limitations and assumptions of these tools. In analyzing the output, for example, does the engineer know both the modeling and algorithmic assumptions the programmer made? Is more than one approach being combined in an interactive manner? Is the program modeling fluids or statics?

  • Complete information . When experienced construction professionals conduct checking, estimating and planning tasks, they traditionally rely on information provided by blueprints. Will information coming in electronic snippets from places such as project web sites provide the same visual prompts to ensure the quality of checking?

  • Price cutting . The market for computerized tools is consolidating, and the economies of scale are causing a reduction in tool prices. Such price-cutting effectively stifles competition. Consequently, most users are not in a position to negotiate meaningful recourse for defects in the tools. The Uniform Commercial Code, favorable case law and mass distribution of software, including downloading from web sites, have allowed distributors to effectively limit their liability to end users with shrink wrap and web-site "click-wrap" licenses. Even in custom software, it's common for manufacturers to limit their liability for software replacement costs.

  • A lack of information . Most building-system equipment now operates by computer circuits embedded in the machinery. Often the problem with such sophisticated systems arises not from an inherent defect, but inadvertent misuse caused by a lack of understanding of how the system operates. For instance, the understanding of complex control circuits depends on the quality of the explanation given by the manufacturer. The source code for such programs is probably not available to the designer, the contractor or the owner. The seller may not even own the source code. If problems develop and the owner of the source code is no longer able to respond, the project owner faces an expensive repair cost.

  • Unstable electricity . Yet another challenge to the operability of building-system technology is the fact that a constant uniform flow of electricity can't always be guaranteed. The recent energy crisis in California demonstrates that power failures can become frequent and widespread. Computers depend on electricity and they are fussy about the quality of the voltage. A loss or spike in power can corrupt the data or lose it completely. Expecting other parties to be able to anticipate such problems may exceed the normal contingency planning.

Caught in the web

So what happens if, for whatever reason, an engineer gets caught in this messy web?

In the traditional tripartite construction contracting arrangement, the design professional's liability for the failure of building technology normally depends on a claimant establishing negligence.

Assume an engineer employs a computer tool that was in common use among "similarly situated professionals." The program generates an error—unknown among designers—but the generated output was checked and not noted as suspicious. This scenario parallels the situation where a designer relies on the representation of a product manufacturer to determine the suitability of a specified product. In such situations, the designer's liability may depend on the thoroughness of his or her investigation of the product.

An actual case along these lines involved a structural engineer. The engineer used a flatplate structural analysis program, widely distributed by a prominent materials association, to calculate the floor thickness for a five-story medical office building. When installed, the floors were too thin and drooped at the corners.

In the course of investigation, evidence was discovered that proved the association knew about the program defect, which only arose in limited circumstances. The association, in fact, was in the process of making a revision when the client used the defective program. It was asserted that it was professionally reasonable to use an engineering structural analysis program, despite a flawed output caused by an undiscovered programming error. The case was settled out of court.

Despite this credible position, I know of no substantive rulings in which an architect or engineer successfully argued that he or she was not negligent because the fault was that of the computer program. Moreover, using the computer program as a negligence shield could fail if the design problem resulted in a code violation, which in some states, breaches an implied warranty or constitutes a presumption of negligence. Dealing with the situation

It's important to be aware that computer hardware and software can instill a false confidence in the accuracy of information generated by these tools.

The best way to avoid technology-induced errors and omissions is to:

  • Use proven and supported computerized tools and products, and subscribe to services which report problems.

  • Continually train engineers to understand the limitations of computer tools and not let computer output replace engineering judgment.

  • Convince clients that in preparing their budgets, the best investment is intensive engineering reviews, even where computer tools have already been employed.



IT Managers Enjoy Salary Increase

Information technology managers at A/E firms nationwide are taking home the largest salary increases in the industry, according to ZweigWhite's 2002 Management Compensation Survey of A/E/P & Environmental Consulting Firms .

IT managers' median base salary increased by 21%, and bonuses grew 33%, from 2000 to 2001. Also, from 1998 to 2001, IT managers ranked at the top for salary and bonus increases among design firm professionals, second to financial managers for salary and marketing directors for bonuses.

"This trend is not at all surprising as firms have been competing with the dot-coms for the same people," notes Kathryn Sprankle, a senior vice president at Natick, Mass.-based ZweigWhite. "IT professionals were among the most highly sought after by the high-tech industry. If industry firms didn't raise their pay aggressively, they simply wouldn't have been able to employ qualified IT people. Even now, with a slackened demand, design firms will have to continue to pay top dollar."

For more information on ZweigWhite's compensation survey, log on to:



No comments