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The Legal Framework
The Legal Framework Should Engineering Students Really Care About Business Law? Yes or No ? Paulo F. Ribeiro, MBA, Ph. D. , PE
If you say no, your professional career is headed towards insignificance or disaster. Engineers should not practice law just as lawyers should not practice engineering, However, just knowing the basics of business accounting, contracts, and legal implications will help the young engineer practice engineering more appropriately. Engineers should have an understanding of basic legal principles and broad guidelines of law.
The danger of depending on technology for societal solutions is that technology is usually divorced from those What is an Engineer? permanent principles of A Thinker? morality upon which all just An "Action Figure? " social/political solutions An Organizer? depend. For example, words A Problem Solver? like "justice, " "virtue, " "mercy" What about "Human" problems? and "duty, " are terms without What is a Manager? meaning within the Qualities of a Manager technological framework. And Communication Skills so while technology is not Handling People necessarily evil, it can easily Sense of Cost become a tool for evil Knowledge of the Law because it has no firm grounding in morality. Law and Engineers The engineer has the Engineers Act as Agents of Owners obligation to serve as a moral Engineers deal with rights of others Engineers responsible for contract documents agent. Engineers may be mediators Engineers Are Moral Agents Some Fundamental Questions Therefore, a knowledge of business law is essential!
I insist that engineering students should have a proper understanding of of business law before graduating: Product Liability (Breach, Negligence, Fraud) Intellectual Property Employment Law Contract Dispute Resolution DO NOT OVERLOOK BUSINESS LAW ISSUES (ASD PG&E Expert Witness)
The Entry-Level Professional and Legal Considerations Preparing Contracts For Services (ASD Contracts for Brazil) Interpreting Contracts once Project is Underway (Alaska Project) Managing To Minimize Personal and Organizational Liability (Load Forecasting in Brazil) Anticipating or Preparing For Expert Witness Testimony (PG&E Expert Witness) Being Aware of Local, State and Federal Laws and Rules (AEP Line in Virginia) Being Aware of Additional Resources – Funding (State and Federal) (Navy, DOE) Being Aware of Pending or Recent Legislations (Washington DC, IEEE)
Legal Terminology Breach Violation of right, Duty or Law Fraud Intentionally deceitful practice Liability Being bound or obligated according to law or equity Negligence Breaches… duty below the appropriate standard of care Tort Similar to “wrong” – distinguished from a crime
A New Concept of Social Injustice The search for someone to blame is always successful. (Robert Half) New Tendency to Look For “Deep Pockets. ” Government Agencies Contractors Manufacturers Litigation Explosion Babcock & Wilcox (Asbestos) Power Companies (Cancer due to Low Frequency M Fields)
Liability: Incurring It Liability is defined as “being bound or obligated according to the law. Strict Liability - Liability even when there is no proof of negligence. Often applicable in product liability cases against manufacturers, who are legally responsible for injuries caused by defects in their products, even if they were not negligent. Many Opportunities to Incur It Breach Negligence Fraud
Narrative Jane is a recent graduate engineer working for an electrical consulting company. She is given the job of laying out the wiring for a new home. In particular, she must specify the circuit breakers that protect the circuits to the wall plugs of each room and the ceiling lights. Normally these circuits are wired with AWG #14 wire and are protected by 115 V/ 15 A breakers. A co-worker, who is an production engineer tells her that she should specify 115 V/ 20 A circuit breakers because each circuit then could handle higher current appliances or more appliances at a time. Subsequently, the house was built with the #14 wire installed in the appropriate circuits and protected with 115 V/ 20 A circuit breakers as specified by Jane. Two months after the house was built and the family moved in, a fire occurred in the house causing $75, 000 worth of damage. The fire marshall's report stated that the fire was caused by an electric toaster having a short circuit in it. Was Jane correct in specifying the 20 A breaker rather than the 15 A breaker for this house?
Liability: Incurring It There are two general theories in product liability: Negligence Strict Liability in Tort: Manufacturing defects Design defects Failure to warn The law defines failure to warn as the problem in two situations: Foreseeable risks could have been protected by instructions or warnings The warnings themselves, when followed caused the injuries.
Exposure To Liability – Testing Understanding 1. Participating in necessary conference and preliminary studies Breach: contract promises X meetings, only had Y. 2. Interpreting physical restrictions as to the use of the land Negligence: failed to allow for building set backs 3. Assisting in presentation of a project before bodies possessing approval-disapproval power Fraud: falsely claiming that lower level government units and agencies approve. 4. Keeping accurate books records. Breach: failing to do and submit when required
Liability: Examples of Failure and Lessons Learned Collapse of Hotel Walkway (Kansas) A sense of responsibility and accountability must be established within an organization to minimize the probability of errors in calculations such as happened in the case of the walkway collapse in that the support rods were originally under-designed. A responsibility of the technical professional does not necessarily end with the preparation of plans and specifications. Conscientious review and approval of shop drawings may be part of the firm’s contractual responsibilities. An understanding of fundaments, such as those presented in a first or second year college-level is essential to successful design and to the review of design changes proposed during construction.
Liability: Examples of Failure and Lessons Learned Two fishermen died from sulphur dioxide they used to process fish. A claim was made that no one told them of the danger. The chemical had a warning saying it could mix with water and release toxic sulphur dioxide gas. The warning was ruled inadequate. You need to evaluate the adequacy of warnings.
Liability: Examples of Failure and Lessons Learned Two adults and three children were killed when their 17 ft. Bayliner sailboat turned over and flooded on Lake Michigan. Lawsuit alleged Bayliner failed to effectively design the boats centerboard trunk hole through which a rope runs to raise and lower the retractable centerboard keel, somewhat like a pocketknife. Bayliner had recognized the hazard after the sale and conducted a retrofit campaign. No incidents of the problem resulting in injury were reported before this case. Jury ruled the product was not defective, no duty to warn existed.
Liability: Examples of Failure and Lessons Learned In your Senior Design Project So Far … Any situations which could lead to potential problems in the future had you not properly addressed the issues.
Liability: Examples of Failure and Lessons Learned At Vanderbilt Engineering Failure: The Dark Side of Technology. The course provides students with a grasp of the serious consequences of engineering failures and how they impact society. Perspectives are drawn from case histories. The societal cost of failure, underlying human values, the issue of liability, causes of failure, and failure prevention strategy are examined. Technology-Society elective
Liability: Examples of Failure and Lessons Learned At Calvin Christian Perspective of Engineering Throughout the entire program we strive to bring an integrated perspective of engineering. Competence, Wisdom, Integrity and Responsibility. I get very frustrated when engineering students write in their course evaluation that a Christian perspective of engineering does not matter. They seem to confuse the devotional aspect with the moral component of the lessons taken from Scripture. Engineering practice is constantly requiring moral value decisions. Normative Design should be our goal.
Liability: Minimizing It v. Insurance: Financial Protection ($$$$ - 61% claims paid – 10% settled out of court) v. Preventive practices üIncorporate Practice üLimit Practice to Safer Disciplines (BXWT) üIncorporate High-Risk Services and Areas Separate (BWXT) üMaintain Currency and Competence (Microsoft) üUse Standard Contract Forms (EPRI Contracts) üUtilize Tested Legal Language (Working with Lawyers) üDevelop, Maintain, and Use Written Guidelines (Systems Engineer) üDocument Everything (Write clear Memos) üSupplement Written Documentation (Digital Camera) üAccept Primary Responsibility fir Use of Computer Programs and Models
Liability: Minimizing It v. Preventive practices üSeparate Facts and Opinions üHire Only Insured Sub-Consultants üRespond In A timely Fashion üLimit Project Comments to Knowledgeable Persons üAvoid Financial Interest in Project (ENRON) üUse Peer Review (Team Work) üDo It Right The First Time üSign Reports In Corporate Name Only üCommunicate!!!!! With Those You Serve üPlace Liability-Limiting Provision in Contracts
Application - Testing Understanding Strict liability is a tort theory of recovery based on the alleged carelessness of the defendant's behavior. False or True? Negligence is theory of liability based on careless behavior while strict liability focuses on liability without fault due to the extreme danger of the behavior engaged in (transporting cases of dynamite). The primary purpose of tort law is to undo injury to someone through the mechanism of compensatory money damages. False or True ? The goal of this area of law is to try to make an injured party "whole" again by providing money damages to cover all the costs (pain and suffering, lost salary, medical expenses, property damage, etc. ) attributable to the injury causing behavior of the defendant.
Intellectual Property • Often a business’s most valuable asset • Three types protected: – patents – copyrights – trademarks and other marks
Intellectual Property In a society which places an ever-greater value on specialist knowledge and which looks for creative solutions to solve a diverse range of world problems, the need for a fair and efficient intellectual property system is paramount. Whether you are concerned with the Internet, the environment, pharmaceuticals or music, who owns what rights and how those rights are protected is something you should know.
Intellectual Property Intellectual property is a product of the intellect which is owned in some way by an individual or an organization, who can then choose to share it freely or to control its use. Intellectual property is found almost everywhere - in creative works like books, films, records and software, and in everyday objects like cars, computers, drugs and varieties of plants, all of which have been developed thanks to advancements in science and technology.
Patents • Federal Patent Statute of 1952 • Invention requirements: novel, useful, not obvious • Cannot be renewed • Patentable subject matter: – machines – processes – compositions of matter – improvements to existing machines, processes, or compositions of matter – designs for an article of manufacture – asexually reproduced plants – living material invented by man
Patents • U. S. follows first to invent rule, rather than first to file rule • U. S. patent law changes effective in 1995: – patents valid for 20 years – patent term begins from date application is filed, not when patent is issued – brought U. S. system in harmony with majority of other developed nations • Public use doctrine: patent may not be granted if the invention was used by the public for more than one year prior to the filing of the application • Patent infringement: unauthorized use of another’s patent, damages may be recovered
Copyrights • Copyright Revision Act of 1976 – establishes requirements to obtain copyright – protects copyrights against infringement • Tangible writings (physically seen, not ideas) are subject to registration and protection • Copyright infringement: when a substantial and material part of a copyrighted work is copied without permission • Fair use doctrine: permits certain limited use of a copyright by someone other than the copyright holder without permission from the holder
Copyrights - Language http: //www 4. law. cornell. edu/uscode/ Definitions: ''Copies'' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''copies'' includes the material object, other than a phonorecord, in which the work is first fixed. A work is ''created'' when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work. US CODE - TITLE 17 > CHAPTER 1 > Sec. 101.
Copyrights • Uses permitted by fair use doctrine – quotation of work for review or criticism, or in a scholarly or technical work – use in a parody or satire – brief quotation in news report – reproduction by teacher or student of a small part of the work to illustrate a lesson – incidental reproduction in a newsreel or broadcast of an event being reported – reproduction in a legislative or judicial proceeding
Trademarks • Law intends to: – protect owner’s investment and good will in a mark – prevent consumer confusion as to the origin of goods and services • Registration – valid for 10 years – can be renewed for an unlimited number of 10 -year periods • To qualify for federal protection, a mark must: – be distinctive: brand name that is unique and fabricated – or have acquired a “secondary meaning”: an ordinary term has become a brand name
Trademarks • 4 types of marks can be trademarked: – trademark Xerox, IBM – service mark United Airlines – certification mark “Florida” oranges – collective mark Boy Scouts of America • Trademark infringement: unauthorized use of another’s mark, damages may be recovered • Generic name: trademark that becomes a common term for a product or service – protection under federal law is lost – examples: yo yo, trampoline, escalator, linoleum, dry ice – Power Quality (a personal experience)
Employment and Labor Law ü Federal Labor Law ü Organizing A Union ü Collective Bargaining ü Strikes and Picketing ü Worker’s Compensation Acts ü Occupational Safety and Health Act ü Social Security
Contracts They provide the means for individuals and businesses to sell or otherwise transfer property, services, and other rights. Without enforceable contracts, commerce would collapse. Contracts are entered voluntarily. The terms become private law between parties. Definition A contract is an agreement that is enforceable by a court of law or equity. A contract is a promise or a set of promise for the breach of which the law gives a remedy or the performance of which the law in some way recognizes a duty.
Contracts Parties to a Contract Offeror Offeree Requirements Elements Agreement, Consideration, Contractual Capacity, Lawful Object Defenses to the Enforcement of A Contract Genuineness, Writing and Form Sources of a Contract Law Common Law of Contracts Uniform Commercial Code Classifications Bilateral and Unilateral
The Technical/Legal Language 3. 3. 4 Workmanship a. The PCS shall be fabricated and assembled in a thoroughly workmanlike manner, and shall be free from blemishes, defects, burrs, sharp edges and foreign materials; and accurate in dimensions and alignment of parts. b. Assemblies and parts thereof shall be cleaned of smudges; loose, spattered or excess solder; metal chips and mold release agents; or any other foreign material which might detract from the intended operation, function or appearance. c. Screws, nuts and bolts shall show no evidence of cross threading, mutilation, or detrimental or hazardous burrs, and shall conform to the specified type and tightness or torquing. d. Wires and cables shall be positioned or protected to avoid contact with rough or irregular surfaces and sharp edges to avoid damage to insulation, conductors, or adjacent parts. e. Shielding on wires and cables shall be secured in a manner to prevent contact or shorting of exposed current-carrying parts. The ends of shielding or braid shall be secured to prevent fraying. f. Harnesses and cable containment shall be neat in appearance, uniformly applied and positioned to retain critical form factors and breakout locations. The containment means shall not cause the wire or cable insulation to deform so that performance characteristics are adversely affected.
Maintaining Perspective on Liability Minimization Engineering and the Law The greatest mistake you can make in professional life is to be continually fearing you will make one. One needs to take risks. Calculated (if possible), responsibly. . Plausible reasons have never been lacking for putting off all merely cultural activities until some imminent danger has been averted or some crying injustice put right. But humanity long ago chose to neglect those plausible reasons. They wanted knowledge and beauty now, and would not wait for the suitable moment that never comes. The insects have chosen a different line: they have sought first the material welfare and security of the hive, and presumably they have their reward. [People] are different. They propound mathematical theorems in beleaguered cities, conduct metaphysical arguments in condemned cells, make jokes on scaffolds, discuss the last new poem while advancing to the walls of Quebec. This is not panache: it is our nature. . CS Lewis In others, do not be let your concern with liability become your greatest liability.
In Summary 1 - When short of data keep your mind open and your mouth shut. Question! 2 – Let your creative, imagination and technical skills lead you to an exciting professional career. Engineering is the way to get “from a garden to a city. ” 3 – Do it well, carefully, responsibly … 4 - Document all your work clearly … 5 – Remember: Never To ENRON It… 6 – Keep yourself well informed of the non-engineering issues related to your projects. Engineering projects do not happen in a purely technical background. 7 – Remember the Design Norms: Cultural Appropriateness, Openness and Communication, Stewardship: efficiency and sustainability, Harmony, Justice, Care and love, and Trust … - Engineers are Moral Agents! And you will have little to fear from the Law. Be aware of politics and personal interests.
Quiz ENGR 340 Name: ___________ (use a pen – no pencil) 1 – Fudging performance numbers s) Negligence t) Fraud u)Breach 2 – Failure to check specification requirements f) Breach g) Fraud h) Negligence 3 – Missed report deadline e) Negligence f) Fraud g)Breach 4 – To increase Liability h) Document All i) Shred Everything j)Review 5 – To Control Damage p) Alter Docs r) Propose mutually Beneficial Solution s) Let the Press Investigate
Quiz ENGR 340 ü Just Do It! 1 – 2 – 3 – 4 – 5 – Name: ___________
Quiz ENGR 340 Name: ___________ ü Just Do It – RIGHT ! - Now Grade It. Be Aware of Fraud! 1 – t 2 – h 3 – g 4 – i 5 – r