Liability as addressed herein relates to professional liability and does not include “strict liability”, which may apply to some design professionals. Liability occurs when the negligent act(s) of an individual or company results in damage or injury to someone else. Two essential elements necessary for liability to exist are:
Both elements must be present for liability to exist. Often when a liability claim is made, this principle is ignored or one or both of the elements may be overstated. This may be in attempt to intimidate the entity accused of alleged liability and obtain an offer of settlement without having to prove that either element exists. This, of course, can be easily overcome by a competent attorney. Receiving a claim of alleged liability can be a frightening event because just responding to the claim can consume significant time, energy, and money, none of which is likely to be eligible for compensation or recovery. When a Consultant receives a communication from its Client saying that it is going to file a liability claim, it can feel a lot like the picture above. Care should be taken when making the initial response to a professional liability claim not to overreact. Obtain the facts needed to defend against the claim first and then develop a structured defense based on input from those skilled in the applicable technical and legal areas.