Where a contractor’s laborer died from poisonous gas exposure when he went into a manhole, his family filed suit against an Engineering firm alleging that the firm was negligent is causing the individuals death.  They failed to include a certificate of merit with their complaint as required by Texas law.  A trial court denied the engineer’s motion to dismiss, and this was reversed on appeal, with the appellate court explaining that the claims arose out of the provision of professional engineering services where they implicate the engineer’s education, training, and experience in applying special knowledge or judgment. As such, the appellants were required to file a certificate of merit with their first petition/complaint filed against the engineer. LJA Engineering, Inc. v. Santos, 652 S.W.3d 916 (Texas 2022).

           The court reviewed the engineering contract and described the scope of professional services as follows:

“As its name implies, LJA Engineering provides professional engineering services. LJA Engineering contracted with the City of Sour Lake to provide engineering services for a sanitary sewer rehabilitation project. LJA Engineering agreed to, among other things, (1) provide “preliminary design activities” to establish the “appropriate design criteria” for the project, (2) design and prepare the construction plans and specifications for the project, and (3) provide “inspection services to adequately observe the construction activity.” In addition, the contract between LJA Engineering and Sour Lake provided that LJA Engineering would “serve as [Sour Lake’s] professional representative for the Services, and may make recommendations to [Sour Lake] concerning actions relating to [Sour Lake’s] contractors, but LJA [Engineering] specifically disclaim[ed] any authority to direct or supervise the means, methods, techniques, safety activities, personnel, compliance, sequences, or procedures of construction selected by [Sour Lake’s] contractors.”

The plaintiff’s suit against the engineer asserted, “that LJA Engineering failed to (1) provide warning of the existence of the poisonous gas, (2) properly inspect and oversee the work, and (3) properly supervise those whose work they had the right to control.”

The State of Texas has adopted a statutory requirement that plaintiffs that sue design professionals for negligent performance of professional services must file a certificate of merit with their complaint when the claims arise out of the practice of engineering services.  The court explained that:

“The “practice of engineering” means “the performance of or an offer or attempt to perform any public or private service or creative work, the adequate performance of which requires engineering education, training, and experience in applying special knowledge or judgment of the mathematical, physical, or engineering sciences to that service or creative work.” Jacobs Eng’g Grp., Inc., 502 S.W.3d at 464 (quoting Tex. Occ. Code § 1001.003(b)). The practice of engineering includes, among other things, (1) “consultation, investigation, evaluation, analysis, planning, [and] engineering for program management;” (2) “design, conceptual design, or conceptual design coordination of engineering works or systems;” (3) “engineering for review of the construction or installation of engineered works to monitor compliance with drawings or specifications;” and (4) “a service, design, analysis, or other work performed for a public or private entity in connection with a utility, structure, building, machine, equipment, process, system, work, project, or industrial or consumer product or equipment of a mechanical, electrical, electronic, chemical, hydraulic, pneumatic, geotechnical, or thermal nature.”

                   The court further stated that Claims arise out of the provision of professional engineering services if they implicate the engineer’s education, training, and experience in applying special knowledge or judgment.  In this case, the plaintiffs alleged that the engineer was negligent because it failed to do the following:

(1) “Maintain a safe work environment for workers;” (2) “ensure that workers operated in a reasonably safe manner;” (3) “provide warning of poisonous or hazardous chemicals/gases;” (4) “properly inspect and oversee the work;” (5) “address known hazards and risks;” (6) “utilize reasonable means of protecting workers;” (7) “ensure the sewers were clear before starting work;” (8) “implement and/or enforce adequate safety protocols and procedures;” and (9) “properly supervise those whose work they had a right to control.”

In looking at the allegations in the complaint the appellate court concluded that the allegations implicated the engineer’s “licensed professional engineer employee’s education, training, and experience in applying special knowledge or judgment to the performance of LJA Engineering’s contractual obligations to Sour Lake.”

For these reasons, the court held that a certificate of merit was required. 


About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk Report, Vol. 25, No. 1 (January 2023).

Copyright 2023, ConstructionRisk, LLC