What Is the Difference Between Engineering and Drafting?
Co-authored by Attorney Brian Mullins
Years ago, there was a fairly bright line between the work performed by an engineer and a draftsman. Historically, a draftsman sat at a drafting table with pencils and provided drawings. Now, much of the drafting is done through computers. Current computer software allows the draftsman to use specifications and data to develop plan sheets with greater design information than in the days of hand drawing.
This article outlines the legal distinctions between drafting and engineering, in an effort to define when drafting may be deemed to have crossed the line to engineering.
In Wisconsin, a professional engineer must be licensed and registered. Wis. Stat. §§ 443.02, 443.04, 443.08(2) and (3). A professional engineer is someone who is qualified to engage in the “practice of professional engineering,” which is defined as:
any professional service requiring the application of engineering principles and data, in which the public welfare or the safeguarding of life, health or property is concerned and involved, such as consultation, investigation, evaluation, planning, design or responsible supervision of construction, alteration, or operation, in connection with any public or private utilities, structures, projects, bridges, plants and buildings, machines, equipment, processes and works.
Wis. Stat. § 443.01(6).
This definition relies upon, but does not define, what constitutes “engineering principles and data.” The Illinois Supreme Court struck down a similar definition as unconstitutionally vague, noting that these terms “have no fixed and definite meaning.” Krebs v. Thompson, 387 Ill. 471, 478, 56 N.E.2d 761 (1944).
Drafting and drawing are not referenced in Section 443.01(6). However, Wisconsin courts have ruled that relaying information back and forth between office and the field does not constitute a “professional service, such as consultation, investigation, evaluation.” Kenneth F. Sullivan Co. v. Cincinnati Ins. Co., 323 Wis. 2d 275, 779 N.W.2d 723 (Ct. App. 2009). Additional guidance is provided by the Wisconsin statutes which include the following express exemption for contractors preparing drawings relating to their construction work:
Notwithstanding any other provision of this chapter, contractors, subcontractors or construction or material equipment suppliers are not required to register under this chapter to perform or undertake those activities which historically and customarily have been performed by them in their respective trades and specialties, including, but not limited to, the preparation and use of drawings, specifications or layouts within a construction firm or in construction operations, superintending of construction, installation and alteration of equipment, cost estimating, consultation with architects, professional engineers or owners concerning materials, equipment, methods and techniques, and investigations or consultation with respect to construction sites, provided all such activities are performed solely with respect to the performance of their work on buildings or with respect to supplies or materials furnished by them for buildings or structures on their appurtenances which are, or which are to be, enlarged, or materially altered in accordance with plans and specifications prepared by architects or professional engineers.
Wis. Stat. § 443.14(6) (emphasis added).
Other sections of the design professional statutes are also informative. Chapter 443 imposes registration requirements on professional engineers, who must be registered, and whose employer must obtain a certificate of authorization. Wis. Stat. §§ 443.08(2)(b) and (3)(a)2. Wisconsin-licensed architects and engineers may practice through a firm, partnership or corporation, as principals, officers, employees, or agents, if all personnel who practice architecture or engineering are Wisconsin-registered architects or engineers, and if the firm has been issued a Certificate of Authorization. Id. Firms that have not been issued a Certificate of Authorization may not practice architecture or engineering. Id.
All final drawings involving the practice of professional engineering, prepared for the use of a firm, partnership or corporation “shall be dated and bear the signature and seal of the professional engineer who was in responsible charge of their preparation.” Wis. Stat. § 443.08(4)(b) 3, 4. The terms “supervision,” “direct supervision,” “responsible charge,” and “direction and control” mean “direct, personal, active supervision and control of the preparation of plans, drawings, documents, specifications . . .” Wis. Admin. Code § A-E 8.03(5).
Under Wis. Stats. § 443.14(3), a public service company and its regular employees acting on its behalf are allowed to conduct professional engineering services if they are subject to regulation, supervision and control by a federal or state utility commission. It is not clear whether this exemption would apply to a subcontractor hired by a public service utility company. Based on communications with State regulatory staff, we understand that it would be the position of such staff that this exemption only applies to the public service utilities and its regular employees, and should not be construed to include a subcontractor working for the public utility company.
We also have tried to identify a “bright line” test in the literature for when a draftsman is performing regulated engineering services. There appears to be no bright line test or sufficiently analogous factual settings to define a test with any certainty.
Interestingly enough, there have been very few instances of disciplinary actions against draftsmen who have been accused of practicing engineering. The vast majority of the complaints against engineers deal with the stamping of drawings when the engineer does not properly supervise the draftsman. The issue typically focuses on what constitutes “direct” supervision.
We also have reviewed various documents with clauses attempting to limit liability on drawings. However, a statement on a drawing that one is not performing engineering services does not provide assurance that the regulator will agree. Rather, one should expect that the regulator will evaluate whether the work requires the use of engineering judgment to protect public health and safety. That is, a disclaimer or exclusion will likely not by itself eliminate an individual’s liability.
The exemption found in Wis. Stats. § 443.14(6) affords a defense if one has been preparing drawings historically and customarily, as a component of construction-specific services. This may not be a complete defense if there is a risk to public health and safety.
We also have explored whether the Attorney General would issue an opinion and try to draw the bright line. It is likely the Attorney General would go back to the Department of Safety and Professional Services and say that each situation will be very fact specific on where to draw the line. As much as we would like to be able to provide everyone with a bright line test, it is these authors’ opinion that there is no bright line test. And if in doubt as to whether it is the work of a draftsman or the work of an engineer, one should assume that of an engineer and have the work properly supervised and plans stamped.
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