Will Floodgates of Litigation Open against Engineers for Failure to Design to Avoid Damages from Extreme Weather?

With news of increased flooding throughout the United States, what is a design professional’s standard of care when it comes to designing buildings that could foreseeably be damaged? My Briefing Paper of Summer 2018 suggested that even if designers comply with existing codes and FEMA flood plain requirements, they may still be sued if flooding was foreseeable and they failed to account for it in their designs.   [See Paper here]. Now, a federal district court has confirmed that federal law does not preempt all state court causes of action against engineers who are alleged to have violated the standard of care even though they may have met FEMA flood plain requirements. Alexander v. The Woodlands Land Development Company, 325, F.Supp. 3d 786 (2018).

The federal law only preempts state law claims that arise under federal flood insurance policies. Here the homeowners alleged that the engineers failed to conform to the standards of care applicable to the professional engineers or developers. The court concluded, “Because the underlying duty exists under state law, state law controls whether Defendants’ were negligent or grossly negligent.” “Because Plaintiffs challenge Defendants’ professional judgment and representations, not the accuracy of FEMA’s [flood plain] determinations, no federal issue is actually disputed and substantial.”

Design professionals, and their insurance carriers, are going to need to take very seriously the potential for litigation by property owner’s who suffer damages from extreme weather (such as floods and fires) that should have been foreseeable and accounted for in the designs.

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.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 21, No. 5 (June 2019).

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