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Volume 6 - Number 29 | July 21, 2008
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EDITOR'S NOTES
Limitation of liability clauses in engineering services agreements have been controversial. The clauses typically limit the engineer's liability exposure to a refund of the fee the engineer received from the project owner. Engineers argue that this is an appropriate allocation of business risk, commensurate with the engineer's limited participation and small portion of the total project cost. Some owners feel these clauses give engineers a virtual license to commit malpractice. The Georgia Supreme Court recently refused to enforce one of these limitation clauses.
In another case, the Armed Services Board ruled that a slab of concrete was so hard that demolition contractors could not have been expected to anticipate the degree of difficulty encountered in breaking it out. This was a classic "Type 2" differing site condition.
And a New Jersey court refused to allow an equipment supplier to challenge an allegedly restrictive specification requiring the use of a particular proprietary product. The supplier was not a bidder on the prime contract and therefore lacked standing to challenge the spec.
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