Point of Beginning

On the Level

February 28, 2006


In my last POB column ("Surveyor vs. Surveyor," October 2005) I discussed the surveyor's role as professional witness in negligence cases against other professionals. This month I would like to look at a related issue: the professional liability risk attendant upon the licensed professional.

The proprietor is well aware of the risk of being in business, especially if he has a second mortgage on his home, business loans to finance the purchase of equipment and short-term loans to meet current expenses. The prudent businessperson assesses his or her business risks and sets profit goals accordingly; profit is the justification for taking business risks. (The proprietor who cannot make a profit from his business might as well give it up and work for someone else.) The proprietor carries a risk that comes with his professional license in addition to his business risks. As a professional he is expected to meet a certain standard of care in his work, and if he fails to meet that standard he may be held liable for any resulting damages.

The employed professional surveyor is free from the business risks carried by her employer but she carries the same risk burden for professional liability as the proprietor when she seals a plan for distribution or recording, when she sets a property corner marker or when she stakes a position for construction. The big question is: How does the employed professional assess her professional liability risk and how does she justify taking that risk? These are questions we are uncomfortable discussing; they raise too many other prickly issues. Like, how much should the employed professional be paid to assume a professional liability risk? Should the licensed employee carry her own professional liability insurance coverage (in addition to that carried by her employer)? On the other hand, maybe the proprietor should assume sole professional responsibility for all the work done by all his employees. But is there any point in the proprietor employing licensed professionals and paying them accordingly if he, the proprietor, must take all the responsibility for all the work done out of his office?



It's a funny thing about risk assessment: we go through life accepting all kinds of risk without even thinking about it. For instance, driving my car on a two-way street I am meeting and passing other cars only a few feet away with a closing speed of 70 to 90 miles per hour. Both of us are that close to mayhem or death. I run the risk several times as I drive downtown for a loaf of bread.

While driving my car I have at least some control over the situation but on a commercial flight my risk is defined by the skill of many other people including mechanics, pilots, air traffic controllers, radar operators, meteorologists and so on.

Thousands of Californians live astride the San Andreas Fault accepting the risk of the next-widely predicted-earthquake. People continue to build-and rebuild-their high-priced summer homes on barrier beaches on both coasts.

The storm that ravaged New Orleans came as little surprise to many experts who predicted such an event as inevitable. The popular intent is to reconstruct even the neighborhoods at lowest levels, counting on new and better levees for protection. But one engineer has pointed out that Hurricane Katrina was less than the highest-category storm, that the Mississippi River was at less than flood stage and that Katrina did not produce the maximum probable flood for the region. Bringing New Orleans back to anything close to its former glory will cost millions and is of questionable fiscal wisdom given the likelihood that it will all happen again.

How do we deal with these risks? We continue to drive every day though 30,000 Americans are killed on the highways annually. We pay hundreds of dollars to let strangers carry us seven miles straight up to where the normal life expectancy is measured in microseconds. We insist on our right to live on sand dunes and in earthquake-prone areas because we treasure the quality of life. We will rebuild New Orleans and its levees because people want to live there, because politicians insist upon it, and because of the good food and the great music we associate with the city.

In light of all this, the rational mind says we are not very good at risk assessment. When things go wrong we often find in hindsight that our risk assessment was faulty or nonexistent. In consideration we admit that we ought to practice better risk assessment. When our desire to live a certain way says it is worth the risk, then OK. But to take risks without even considering the possible consequences is not the course of the prudent person, and prudence is arguably as important as competence for the professional surveyor.

As an employed professional, you should assess your professional liability risk. What is it worth to you to live with this risk? (And by the way, as a licensed surveyor working for somebody else, recognize that your boss is providing you with employment at the risk of everything he owns, not only for his professional liability but for his entrepreneurship as well.) As for the proprietor, he should assess his risks and examine his fee schedule and profit margins; he must earn enough to justify the risk that comes with being in business. There is a risk/reward equation whether in the car, in the air, on the beach or at work.