Engineering Inspector May Be Liable For Design-Caused Environmental Damages

Tuesday, July 03, 2018 6:38 am
July 2018 - Volume 40 Number 7

An engineering inspector was charged with monitoring a construction project’s plan to protect a nearby lake property from environmental damages. After lake pollution occurred, the property owner succeeded in proceeding with its negligence suit against the inspector.

In H.W. Lochner, Inc. v. Rainbo Club, Inc., 2018 Tex. App. Lexis 3214 (May 8, 2018)

the Texas Department of Transportation (TXDOT) embarked on a project in 2014 to improve a seven-mile stretch of highway southeast of Athens, Texas. The project work included developing a storm water pollution prevention plan (SW3P) to address the risk of storm water runoff polluting downstream surface waterways. TXDOT contracted with an engineer to perform the SW3P work and with W.H. Lochner, Inc. (Lochner) to act as the Project Construction Engineering Inspector.

In 2016, while the project was ongoing, a nearby property owner, Rainbo Club (Rainbo), filed a lawsuit claiming project runoff had polluted its lake and negatively impacted the fish population. Rainbo initially sued TXDOT and the project’s general contractors, but it subsequently sued the engineer and Lochner for a defectively designed and improperly implemented SW3P. Rainbo alleged that Lochner, as on-site inspector, was negligent in its responsibilities to identify and address the plan’s inadequacies.

Lochner filed a motion to dismiss the claim, but the trial court denied its motion. This appeal followed. In it, Lochner claimed Rainbo’s expert affidavit was insufficient to support its claims under Texas Civil Practice and Remedies Code Section 150.002, which defines conditions for certificate of merit claims. The appellate court upheld the lower court’s decision to let the matter proceed.

Expert placed blame squarely on design

This dispute dates back to March 2016 when Rainbo asked TXDOT to cease work and reimburse it for expenses and environmental remediation costs associated with the run[..]