Designing for Electrical Safety that can withstand Legal Scrutiny

Copyright Material IEEE

Paper No. ESW2009-29

Michael S. Morse, Ph.D

Member, IEEE
University of San Diego
Department of Electrical Engineering (Loma Hall)
5998 Alcala Park
San Diego, CA 92110
DrMMorse@electricalinjury.com

Abstract - When considering the issue of electrical safety in
product and system design, it is critical to use a well defined
design process that complies with the legal standards.
Engineers need not be lawyers but they do need to understand
how the law views the process of engineering design. For any
product or system that brings electrical energy into close
proximity with human users, the risk of electrical injury must
always be deemed as foreseeable. Design considerations
must be constructed upon knowledge of foreseeable risks from
intended as well as unintended uses of the product or system.
To comport with legal standards, foreseeable modes of failure
must be identified and dealt with before the product or system
ever sees the marketplace. Negligence in design attaches
when the design process fails such that the designer’s duty to
follow the appropriate and proper design procedure has been
breached.
Index Terms — Electrical injury, electric shock, engineering
design, negligent design, negligent engineering.
I. INTRODUCTION
The engineering design process as it is taught in engineering
programs today rarely teaches engineers the extent of their
liability exposure for failing to follow the process properly. This
has led to an engineering culture that regularly and
unnecessarily exposes itself to liability risk. In the area of
design for electrical safety, this lack of proper training has
proven itself to be endlessly problematic. Engineers learn that
the design process is iterative, with each iteration moving one
step closer toward honing in on the best design. The part of the
process that is rarely learned is how to use good design as a
shield against later accusations of negligent product/system
design. Few engineers come to understand or really
appreciate this aspect of the design process prior to finding
themselves in a courtroom defending their design and their
design process.
When specifically considering design for electrical safety,
following a design process that comports with the standards
dictated by the law is essential. Failure not only leads to liability
but also often leads to terrible injury.
For any product that brings electrical energy into close
proximity with human users, the risk of electrical injury should
always be deemed as foreseeable. Any uses, even
unintended uses, of a product/system that are foreseeable
should always be considered in the engineering design
analysis. When designing for electrical safety, foreseeable
modes of failure need to be identified and prioritorized based
on the risk of injury. The mechanism for resolution of
foreseeable risks is dictated by properly followed procedures.
Negligence in design attaches whenever this process fails.
For the electrical safety expert, merely following the code,
statutory standards, or other regulation (without deeper
analysis) is almost certain to guarantee an invitation into the
legal forum. Similarly, expecting human behavior that
contradicts human nature will certainly lead to litigation.
Expecting that a product will not cause injury, no matter how
innocuous the product, is a recipe for disaster.
While engineers need not be lawyers, they should recognize
that the legal process and the engineering design process run
on intersecting tracks. The design process is forward looking
with the intention of creating a good and safe design. The legal
process is retrospective. Litigation allows an injured party to
test the safety of a product, a design, or in the case of this
discussion, an electrical environment, in the legal forum. Unlike
the design process, which is controlled by engineers who
presumably think like engineers, the legal process allows
lawyers and a jury (which should never contain engineers) to
judge the quality and legality of the engineering process.
Further, it is all done expecting forward looking engineers to
see what the jury will see in their hindsight and it is true that
hindsight is always 20/20.
The risk of electrical injury and ensuing litigation can be
decreased by considering the design process in the context of
the current legal environment. Electrical safety experts need to
learn how to view design for electrical safety as it may someday
be viewed in a legal forum. The ultimate goal is to better
approach their responsibilities and to maximize the safety of the
electrical environment while minimizing liability exposure.
II. THE ENGINEERING DESIGN PROCESS
For student engineers, learning the “Engineering Design
Process” begins almost the first day of college. It starts with
projects in the Intro to Engineering Class during the first
semester and continues through the senior project four years
later. From there, the engineering design process remains a
cornerstone of almost any position in engineering requiring
design.
The process as defined in most engineering texts may vary
slightly but generally contains a consistent stepwise
methodology that consists of:

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 1. identification
2. Problem definition
3. Search
4. Constraints
5. Criteria
6. Alternative solutions
7. Analysis
8. Decision
9. Specification
10. Communication.
Stated simply, engineering design is an iterative process
whereby the final product or system is reached through the
process of design, analysis, and then redesign, repeated until a
final best design is reached. The final design being the optimal
balance among all competing considerations. [1]
III. NEGLIGENCE
Negligence is defined as “The omission to do something
which a reasonable man guided by those ordinary
considerations which ordinarily regulate human affairs, would
do, or the doing of something which a reasonable and prudent
man would not do. [2] To be negligent, one must either do
something they have a duty not to do or fail to do something
they have a duty to do. The duty is defined in the context of
what a reasonable person in a similar position would do.
Negligence in engineering design arises when an engineer fails
to do what a reasonable engineer would have a responsibility to
do in those circumstances. Thus to avoid negligence, it is
important for an engineer to avoid failing in their duties. The
question that is always difficult to answer when looking into the
future, is how will a jury of non-engineers define an engineer’s
duties when looking in hindsight?
IV. ENGINEERING DESIGN, DUTY, AND NEGLIGENCE
To understand how negligence arises in engineering design,
it is critical to focus on the “Analysis” step in the design
process. Design analysis includes every aspect of design
review from considering whether the design meets technical
specifications to an economic analysis, to an extensive study of
product safety. The goal for the (reasonable) engineer is to
hone in on the design of a safe product that meets the needs of
the target consumer. [1]
It is the analysis step of design that puts lawyers and
engineers forever on a collision course. Engineers view design
prospectively while lawyers look at design in retrospect.
Engineers are taught that designs must be safe. Lawyers look
to see if the design was negligent. Engineers are taught to
design for the target consumer. Lawyers consider if the design
was reasonable when considering a single consumer, their
client, who has been injured.
When there is an injury, the battlefield is the courtroom and
the jury gets to choose who wins the war. The language
between the professions may be different but the goal is
ultimately the same. The engineer must design a safe
product/system for a reasonable consumer. The lawyer is
tasked with testing the sufficiency of the design to see if the
design did in fact breach the legal standard for negligence
which by default makes the product or system unsafe in the
eyes of the law.
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V. THE EFFORT TO AVOID NEGLIGENCE IN
EGINEERING DESIGN
The engineer is seeking safety with the underlying (and
often unstated) goal being to avoid being negligent. Although
taught in many different ways, the approach to minimizing
liability exposure is largely the same for all design. It
requires identifying and managing the risks associated with all
foreseeable uses and misuses of the product as part of the
engineering design process. If the risk associated with a
foreseeable mode of product failure is significant, such as the
risk of substantial injury or death, proper design dictates that
the engineer must modify the design per the following
protocol (sometimes referred to as the “safety hierarchy”) [3]:
1. The risk must be removed by changing or altering
the design.
2. If the risk cannot be removed, the design must be
altered so the device or system will fail on the side of
safety.
3. If the device cannot be designed to fail on the
side of safety, adequate warnings must be provided
so that those in proximity are appropriately made
aware of the risks. Warnings must never be used as
a substitute for good design (steps 1 and 2) but, if
used, should be used only as a last resort.
Good design ultimately hinges on knowing what should be
foreseeable to a reasonable engineer and how a reasonable
consumer will use (or misuse) the product/system. It all hinges
on having a true understanding of what creates
reasonableness.
VI. DESIGNING FOR THE REASONABLE CONSUMER
In order for a designer to assess foreseeable risk, the
designer must know what defines their reasonable consumer.
This is clearly a moving target that must consider the pool of
consumers, the nature of their interaction with the design, and
the scope of risks posed by the design. The definition of a
reasonable consumer who might purchase a surgical tool used
only by physicians is vastly different than the reasonable
consumer purchasing a shovel at a home repair warehouse.
When designing for electrical safety, knowing all foreseeable
end users becomes ever critical. Providing a product to be
used by individuals trained to interact with electrical systems
(such as linemen or electricians) sets a vastly different bar than
providing products or systems to be used by or interacted with
the general population. Placing erroneous expectations on the
reasonable consumer sets the perceived bar for negligence at
the wrong level.
One example that has been litigated with mixed results
involves cases where lay-persons contact power lines with
ladders.. The California Public Utility Commission reported
17 “ladder related contacts” from the period of 1989 to
1997.[4] On its face, it seems hard to blame the power
companies when they spend an incredible amount of money
on public campaigns to make people aware that power lines
are lethal. All cities have codes that mandate that power
 lines not be in vertical or horizontal proximity to structures.
Ladders all have warnings about power line contacts. Still
these incidents occur with considerable frequency. Is it
possible that the power companies are negligent in failing to
understand their reasonable consumer? Research has
demonstrated that humans, even with knowledge of the risk
posed by power lines, and even when acting with normal and
reasonable diligence can still contact overhead power lines
because of the nature of human design and physical
limitations. Accepting these facts as true, it becomes
arguable that the power companies are negligent when they
fail to consider all aspects of human nature and thus
erroneously define their reasonable consumer.
A second example occurs when those designing for electrical
safety fail to consider ALL that defines the current state of
science regarding risk of injury from electrical contact. The
current state of science dictates that contacts once thought to
pose little to no risk can cause (in some small number of
cases) long term and debilitating injury. Still, the design of
many systems and products rely solely on risk curves which
are now antiquated and are not all inclusive when defining
the limits for risk. The response of the reasonable consumer
is thus not properly anticipated. The designers have a duty
to use the most modern definitions for the risk of harm during
the analysis phase of their design process. When design is
done properly, foreseeable injury should be abated and
liability reduced if not eliminated.
VI. CONCLUSIONS
For those designing for electrical safety, the magic word
becomes foreseeability. The designer needs to be able to
foresee modes of failure, the risks they pose and who will
ultimately consume or interact with the design or system. Not
only must the design be forward looking with regard to issues of
safety, but it must also consider how a jury of laypersons will
look at the actions of the engineer in the context of the
adversarial legal environment where every aspect of the design
process will be questioned and tested. There is no guarantee
that following a bulletproof process will yield bulletproof results
but it will create a position that is far more defensible in a
courtroom and will hopefully reduce the risk of injury so as to
lessen the chance of ever reaching the steps of the courthouse.
VII. REFERENCES
[1] Eide, Jenison, Mashaw, and Northup, “Engineering Fundamentals
and Problem Solving, 3/e” McGraw-Hill Companies, Inc. 2001
[2] Blacks Law Dictionary, 6th Edition, West Publishing Company, St
Paul, MN, 1991.
[3] Susan Ford v. Polaris Industries, Napa County, California
Super. Ct. No. 26-18577
[4] California Public Utility Commission, Electrical Injury Database,
2001
VIII. VITA
Dr. Michael Morse has spent much of the last two decades of his
professional career studying the effects and outcomes of electrical
contact on the human body and consulting as a forensic expert in
electrical injury and electrical product failure cases. As both an
engineer and a lawyer, Dr. Morse has focused his efforts on cases
involving failure of engineering technology at the interface between
humans and human-made technology. Much of his expertise goes
directly to considering how engineering failure, injury, and litigation
could have been avoided if the engineering design process had been
followed so as to comport with the standards of the law.
Born in New York way too long ago, Dr. Morse received his BS and
MS in Biomedical Engineering from Tulane University in New
Orleans in 1981 and 1982. He went on to get his Ph.D from
Clemson University in South Carolina in 1985. After a brief stint in
industry, Dr. Morse joined the faculty of Auburn University in 1987
where he developed a successful consultancy in the area of electric
shock injury and electromechanical product failure. Over the last
two decades, on many occasions, he has testified as an expert
witness in both state and federal courts.
In 1990 Dr. Morse joined the Electrical Engineering faculty at the
University of San Diego, reaching the rank of Full Professor in
2004. Between 1995 and 1999, he attended USD School of Law and
was admitted to the California Bar in 1999. His ongoing research
includes studying and simulating the real pathways followed by
current during an electrical accident and analyzing the potential for
injuries such as electrically induced Carpal Tunnel Syndrome as
well as studying rare responses to electrical contacts which he has
come to characterize as Diffuse Electrical Injury (DEI).