Historically, fire protection engineers have been tasked with many different responsibilities in the design, review and commissioning of fire protection and life safety systems as part of the traditional construction process. These critical systems and building features are vital to the protection of occupants, emergency responders and the property itself in the event of a fire or other emergency. As such, states in the U.S. regulate the practice of engineering through professional engineering registration and licensure.


It is important for fire protection engineers to make the decision early in their career to place themselves on the course to becoming licensed as a professional engineer (P.E.).Professional licensing as a fire protection engineer brings many advantages. As an individual, the licensed fire protection engineer carries an important credential, bringing recognition from the engineering community. Licensure is one of the checks and balances available for providing safe and reliable designs for protecting life and property from the harmful effects of fire. While important for proactive building and construction tasks, the demand for licensure as afire protection engineer can extend to post-incident matters.

 

Understanding the harmful effects of fire and the means to protect against them are central to the practice of fire protection engineering. Given this specialized background, more and more frequently fire protection engineers are tasked with investigating the cause of fires and explosions, as well as the failure of fire protection systems and their effect on life and property loss.1, 2, 3

 

Often, these failures or accidents lead to legal proceedings, and fire protection engineers, as with other engineering disciplines, are retained to provide specific scientific and engineering expertise in order for the legal proceedings to reach resolution. Forensic engineering services are becoming a common offering for organizations and companies with traditional fire protection engineering divisions. Forensic engineering is defined as, the application of the art and science of engineering in matters which are in, or may possibly relate to, the jurisprudence system, inclusive of alternative dispute resolution. 4


The topics covered in forensic engineering investigations can be quite broad, ranging from the performance of automatic fire sprinkler systems to the ignition and spread of fire on gaseous, liquid and solid fuels. Non-fire events, such as inadvertent fire sprinkler system operations, are also included in these investigations. For example, a fire protection engineer may be tasked with the investigation of whether or not a fire alarm and detection system operated appropriately during a fire event. As part of the investigation, the fire protection engineer may also evaluate how the fire alarm and detection systems performance and/or other factors affected the outcome of the fire, including injuries, fatalities or property damage. This information is of value not only to legal proceedings, but to the fire protection community, as knowledge of past mistakes and successes can create awareness and possibly prevent repeat failures. The role of the fire protection engineer in these investigations, which often involve some form of legal proceedings, can include serving as an expert witness and explaining the facts collected and analyses performed to the judge and/or jury to assist with the resolution of the matter. This usually involves helping people who are not fire protection engineers to understand sometimes complicated, technical engineering issues.

 

Many states mandate that an individual providing (or offering to provide) engineering or consulting services to the public, which in some states includes investigations and expert witness testimony, must possess a professional engineering license. The path to licensure as a professional engineer varies by jurisdiction, but generally involves a combination of education, training, relevant work experience and successful completion of written examinations. Obtaining licensure by a particular jurisdiction means that an individual has satisfied a specific level of education, experience and training that signifies the individual is competent to provide engineering services to the public, as defined by that jurisdiction. Licensure can also supplement a fire protection engineers credibility when called to perform an investigation. In turn, lack of licensure can jeopardize an engineers ability to provide expert testimony in court.

 

When called to testify as an expert in fire protection engineering-related matters, part of the legal vetting process may include assessing the fire protection engineers credibility and ability to offer reliable expert testimony. In Federal Court, this process includes vetting through Federal Rules of Evidence. These rules mandate, among other things, that expert witnesses be qualified and that their opinions be reliable, as follows:

 

Rule 702. Testimony by Experts5
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.


However, in some state courts, this assessment may include a review of the fire protection engineers education, training, experience and licensure status.

 

State Court Rulings
Previously, some state courts have disallowed expert engineering testimony by unlicensed engineers. In 2006, the Alabama Supreme Court reversed a ruling of a lower court, which in effect upheld licensure requirements for engineers who present expert testimony in court.

 

The case of Board of Water and Sewer Commissioners of the City of Mobile vs. James Hunter et al. involved a claim alleging negligent design, construction, operation and maintenance of the sanitary sewer system that served a residence. In support of their claims, the Hunters offered an individual to testify on the subject matter. The Water Board moved to strike this individuals testimony, as he was certified as an engineering intern by the state licensing board, but not as a professional engineer. At the time of this case, in Alabama, the term testimony was included in the definition of the practice of engineering. 6

 

The following definitions were applicable at the time:

 

Engineer or Professional Engineer.
A person who, by reason of his or her special knowledge of the mathematical and physical sciences and the principles and methods of engineering analysis and design, acquired by engineering education and engineering experience, is qualified to practice engineering as hereinafter defined and has been licensed by the board as a professional engineer.


Practice of Engineering.
Any professional service or creative work, the adequate performance of which requires engineering education, training and experience in the application of special knowledge of the mathematical, physical and engineering sciences to such services or creative work as consultation, testimony, investigation, evaluation, planning, design and design coordination of engineering works and systems, planning the use of land and water, performing engineering surveys and studies, and the review of construction or other design products for the purpose of monitoring compliance with drawings and specifications; any of which embraces such services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products; equipment of a control, communications, computer, mechanical, electrical, hydraulic, pneumatic or thermal nature, insofar as they involve safe guarding life, health or property; and including other professional services necessary to the planning, progress and completion of any engineering services.

 

The plaintiffs argued that the individual was trained as an engineer, certified as an engineer intern by the State Board, and had over 16 years of relevant experience in sewer-related matters. The plaintiffs also argued that the licensure law was unconstitutional, as the law was vague and what conduct was prohibited by the law was not easily discerned. The Mobile Circuit Court ruled in favor of the plaintiffs argument and declared that the term testimony resulted in an unconstitutionally vague statute. The defendants appealed the decision to the Alabama Supreme Court, which ruled that the state licensure law was not unconstitutionally vague and that the definition established the minimum level of expertise required to qualify as an expert in engineering-related matters in the state of Alabama and was the same level required to obtain professional engineering licensure within the state.

 

As such, the Mobile Circuit Court decision was reversed and remanded. In this instance, significant experience without the proper professional engineering license was not sufficient to offer expert testimony as part of an engineering investigation. In 2007, the Alabama definition of practice of engineering was changed to include the following language:7

 

Notwithstanding any other provision of this chapter, in qualifying a witness to offer expert testimony on the practice of engineering, the court shall consider as evidence of his or her expertise whether the proposed witness holds a valid Alabama license for the practice of engineering. Provided, however, such qualification by the court shall not be withheld from an otherwise qualified witness solely on the basis of the failure of the proposed witness to hold such valid Alabama license.

 

The practice of engineering shall include the offering of expert opinion in any legal proceeding in Alabama regarding work legally required to be performed under an Alabama engineers license number or seal, which opinion may be given by an engineer licensed in any jurisdiction.

 

Based on the current language (above), the offering of an expert opinion in Alabama does not require an Alabama PE license, provided the engineer is qualified to the satisfaction of the court. However, if the providing of an expert opinion includes prerequisite engineering actions, such as investigations or engineering analysis in a location in Alabama, an Alabama licensed engineer must be in responsible charge of that work.8

 

Other states have definitions of the practice of engineering that include investigation and testimony; the laws specific to and defining engineering vary between states. It is important for fire protection engineers performing investigations to be aware of these requirements, as well as the rules associated with performing work under the responsible charge of another licensed engineer.

 

Licensing Overview
As with the definition of engineering, professional licensure for engineers is generally regulated by state-specific laws and rules. Currently, there is no uniform national standard for engineering licensure accepted within the United States and its territories, much less internationally. A professional engineering board entity is often created by each state and charged with regulating and enforcing the practice of engineering, including the licensure process within that state. The National Council of Examiners for Engineering and Surveying (NCEES), a national nonprofit organization, promulgates the NCEES Model Law9 that reflects best practices as determined by the NCEES Member Boards. It is a model for state practice legislation and presents to the individual jurisdictions a sound and realistic guide that provides greater uniformity of qualifications for licensure, to raise these qualifications to a higher level of accomplishment, and to simplify the interstate licensure of engineers and surveyors.

 

To obtain licensure, an engineer must make application by completion of the state board-specific form, which often includes fields for personal information; education; detailed relevant work experience; the Fundamentals of Engineering (F.E.) exam and discipline-specific Principles and Practices (P.E.) exam scores; peer evaluations; criminal history; and licensure status in other states. All states currently charge an application fee for licensure as a professional engineer. After submittal, typically the state board will evaluate each application in accordance with their rules to determine if the applicant has satisfied the minimum requirements to be licensed as a professional engineer.

 

The NCEES develops, administers and scores the written examinations for engineers used for engineering licensure throughout the United States. Successful completion of the FE exam is typically the first step toward obtaining professional engineering licensure. The FE exam is an eight-hour written exam that covers a wide range of engineering topics. After completion of the FE exam and an appropriate number of years of work experience, an engineer may then qualify to take the Principles and Practices exam.

Licensure in one state does not imply or equate licensure in another. For this reason, an engineer may need to obtain professional engineering licenses in multiple states. The application process can be a tedious exercise, and the NCEES has established a program to facilitate transfer of records for reciprocity or comity of engineering licenses between states.

 

Professional engineering licenses require periodic renewals that range from annual to tri-annual. Renewal of an active professional engineering license often requires a fee. In some states, engineers must complete continuing education activities that serve as refreshers on discipline-specific engineering topics, as well as ethics, laws and rules for engineering.

 

R. Thomas Long and Neil Wu are with Exponent, Inc.

References:

  1. Schroeder, R. Fire Investigation and the Fire Engineer, Fire Protection Engineering, Winter 2004, pp. 6 - 13.
  2. Bartolacci, P. & Foerstner, G. From the Lawyers Perspective: The Role of a Fire Protection Engineer in the Investigation of Fire Related Losses and Subsequent Litigation, Fire Protection Engineering, Winter 2004, pp. 25 - 30.
  3. Long, R., Wu, N. & Blum, A. Lessons Learned From Unsatisfactory Sprinkler Performance, Fire Protection Engineering, 4th Quarter 2010, pp. 26 - 38.
  4. NSPE-NAFE Joint Position on Forensic Engineering, National Academy of Forensic Engineers, Hawthorne, NY, 1991.
  5. Federal Rules of Evidence, Government Printing Office, Washington, DC, 2009.
  6. Board of Water and Sewer Commissioners of the City of Mobile vs. James Hunter et al., Supreme Court of Alabama, 2006.
  7. Code of Alabama, Title 34, Chapter 11.
  8. Arkle, D.T. Does Forensic Engineering Require Licensure? accessed from http://www.bels.state.al.us/pdfs/Forensic%20Engineering%20Article%20Final.pdf.
  9. Model Law, National Council of Examiners for Engineering and Surveying, Clemson, SC, 2010.