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October 31, 2013
In ancient times, architects and engineers faced certain death should their buildings fail.
Fortunately, our legal system is a bit less drastic when it comes to measuring design professional conduct. Predicated on English Common Law from the 1800s, today’s benchmark for a licensed professional’s performance is based on the “professional standard of care.”
The professional standard of care is the prevailing benchmark of professional practice for good reason: it’s about reasonable expectations. An attorney cannot guarantee that his client will win their case in trial. A doctor cannot guarantee that his patient’s heart will continue beating after a transplant. Likewise, an architect or engineer cannot guarantee a perfect result relative to the design of a complex, one-of-a-kind structure that has never before been constructed.
The standard of care is not a standard of perfection; it is a threshold for measuring conduct based on what a reasonable and prudent professional would do under similar circumstances.
A licensed design professional will not be found negligent just because his or her efforts are not successful. They may be found negligent however if they or those under their charge are the cause of damage that results from neglect, apathy or incompetence; or if their conduct does not rise to the level of minimum professional standards.
Because they possess specialized knowledge that is superior to the average Joe or Jane, the professional conduct of architects and engineers is measured on the basis of what a skilled and reasonably competent professional would do in a similar situation, in a given locale and in similar conditions. This is the basis for the design professional standard of care.
Care vs. perfection
Although the professional standard of care has been recognized since the early 1800s, it was not until 2007 that the American Institute of Architects incorporated the following definition into its contracts:
“The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care, and the orderly progress of the Project.”
Accordingly, an architect or engineer has a legal (and ethical) duty to execute their professional services competently. While the design professional’s “instruments of service” and intellectual property (i.e. design and construction documents) must be generally sound and in compliance with applicable codes and ordinances, there is no expectation for perfection.
Not a guarantor
As a rule, an owner has no cause of action against the architect or engineer for strict or implied warranty, since the designer provides professional services and instruments of service, not a product. The courts recognize that a design professional “does not imply or guarantee a perfect plan or satisfactory result, and he is liable only for failure to exercise reasonable care and skill.”
Over centuries, courts in the United States have concluded that architects and engineers who conduct their services ordinarily and reasonably well, and who are not guilty of negligence, recklessness or intentional misconduct, will not be held financially responsible.
• In Coombs v. Beede, the Maine Supreme Court stated: “The undertaking of an architect implies that he possesses skill and ability, including taste, sufficient to enable him to perform the required services at least ordinarily and reasonably well; and that he will exercise and apply in the given case his skill and ability, judgment and taste, reasonably and without neglect.”
• In Gagne v. Bertan, the California Supreme Court stated: “The services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for negligence. On the other hand, those who hire such persons are not justified in expecting infallibility, but can expect only reasonable care and competence. They purchased service, not insurance.”
In a legal dispute or court action, who determines whether or not there has been a breach of the standard of care? Generally speaking, the “determiners of fact” an arbiter, judge or jury will weigh competing testimony from plaintiff and defense experts who will always disagree on whether or not the design professional should, or should not have done one thing or another.
One of the reasons that construction litigation is so complex and expensive is that expert witnesses must construct their opinions based on the record. Before they can do this, the design and construction process must be forensically reconstructed, and this takes a tremendous amount of time and money.
Design professionals must possess the requisite knowledge and skills for all projects that they undertake, and they must execute their duties with due diligence and reasonable care, based on their own industry standards and contractual obligations between the parties. In other words, design professionals can be held negligent if not reasonably competent, for having misrepresented their expertise, or for having failed to exercise due care under a given set of circumstances.
But what is the legal test for negligence? Four elements must be present:
• The person “harmed” must be a member of the class of persons which the law was intended to protect.
• The danger or harm must be one that the law was intended to prevent.
• There must be some causal relationship established between the breach of the statute and the harm caused.
• The criminal statute must be concrete, specific and measurable enough to clearly establish a standard of the breach that is claimed by the plaintiff.
The threshold for determining a negligence-based breach varies slightly from state to state, but these four tests are fairly universal.
Erosion of privity
Design professionals already face some of the most perilous liability of all of the licensed professions. For example, the statute of limitations that applies to attorneys is two years, whereas architects and engineers face a 10-year period of risk between the statute of repose and the statute of limitations.
Design professionals now face a new threat that looms on the horizon: the erosion of privity and changes to laws relating to economic loss.
For centuries, design professionals have been insulated from legal action from third parties that are not in contract with the design professional. Recent West Coast case law does not bode well for design professionals, and we will need to increase diligence and bolster risk management programs in order to counter this threat.
Ultimately, this will lead to higher design fees, which (just like construction costs) are predicated not only on time, but also on risk.
The design professional’s best weapon against professional liability is to ensure best practices at all levels of professional conduct. Implementing and maintaining a solid risk management and quality assurance program is mandatory, but may no longer be enough in an age where technology, delivery methods, material and building science are evolving at such a frenetic pace. Also, integrated delivery, building information management, and sustainable and high-performance buildings continue to raise both expectations and risk.
The burden is on every licensed professional to keep fully informed on a constant basis; and on each firm to assure that its personnel maintain and improve their professional skills, and to ensure that junior team members are properly supervised.
In spite of very best efforts, it is inevitable that a design professional will at some point encounter a dispute whatever the cause. Litigation is best avoided, and all disputes must be addressed and resolved as quickly as possible through negotiation and honest communication, in order to avoid a crushing burden of time and money lost, for almost all concerned (construction law attorneys excepted).
Blaine Weber is a founding partner and director of the High-Rise Design Studio at Weber Thompson, a West Coast-based architectural, planning and interior design firm specializing in housing, hospitality and mixed-use projects of all scales. Weber serves on the Washington State Board for Architects, and chairs an annual course on design professional liability for The Seminar Group.