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D4COST Software

  Complex Systems That Fail
When Is the Architect Liable?

By Arthur F. O’Leary, FAIA, MRIAI

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In our communications aware and security conscious environment, owners increasingly require their new projects to incorporate all the latest systems of communications, surveillance, environmental control, safety, security, protection, monitoring, and energy efficiency. The effectiveness of some of these systems is based on the physical layout of the property and structures while others are heavily dependent on the installation and use of specialized mechanical, electrical, and electronic equipment. Some of these systems are independent while others are interconnected. The possibilities of malfunction and failure to perform are extensive. 

When complex systems fail to operate as expected, economic losses and damages could be stunningly expensive and, in extreme cases, could entail serious personal injury or loss of life. In these situations, the search for those with legal liability will be rapid and unrelenting. 

Who Can Be Responsible for a System Failure? 
These are the prime suspects: 
Contractors and subcontractors are responsible for properly furnishing and installing the specified materials and equipment. 
Manufacturers and suppliers of equipment are responsible for the proper functioning of their products. 
Architects are responsible for the construction documentation and the proper selection and specification of manufactured systems. 
Technical consultants engaged by the owner and/or architect are responsible for their specialized areas of design or specification. 
Owners are responsible for the proper care, maintenance, operation, and use of the equipment. 

To What Extent Can the Architect Be Held Responsible? 
The general principles of professional responsibility are the same for any failure of design. The architect can be found liable whenever the architect’s performance is found to be negligent. 

What is negligence? We can be held negligent if we are not reasonably competent or have failed to exercise due care under the circumstances. We must possess the requisite skills for the projects we undertake and should conduct our professional activities with due diligence and reasonable care. We are required to conduct ourselves in at least the same manner as the average of other architects practicing in the same community under the same circumstances. We should do whatever they usually do and refrain from doing whatever they would not do in the same or similar conditions. 

However, this does not mean that we can do any less than is required by our professional service contracts even if the standard in the community would have allowed for less. Conversely, we are not expected to do any more than our contracts require as long as the quality of services contracted for meets the standard of care. 

We must not undertake projects that are clearly beyond our own technical abilities or those of the personnel we have available to work on the assignment, either as employees or as consultants. Only experienced, competent, and qualified staff should be assigned to each task. Junior and inexperienced personnel must be carefully supervised by fully qualified architects. Whenever necessary the firm should retain outside engineering and other specialized consultants to supplement its own capabilities. 

The specialized technical consultants. Considering the technical complexity of systems required for modern buildings, particular attention must be given to the process of selection of the consultants chosen to design and specify those systems. When technical consultants selected and engaged by the architect fail to perform properly, the architect’s selection procedure will be subject to examination. When selecting consultants for highly technical advice, design, and specification, the architect must carefully review the consultant’s background, qualifications, experience, reputation, and references. 

The architect would be responsible for coordination of the work all of the technical consultants retained by the architect. Many architects would prefer that the consultants needed to design and specify specialized systems required by the client be retained directly by the client. It is normally the architect’s responsibility to coordinate the work of the various consultants involved. 

Overselling Architectural Services. 
In the competitive process of attracting clients and marketing professional services, we usually emphasize the positive aspects of our abilities. We carefully condition our prospective clients to expect nothing less than excellence and perfection. 

A perceptive and intelligent client would probably realize that we might not be as good as we say we are. However, we generally fail to inform our client of the realistic prospect of our making errors of one type or another, regardless of our impressive pedigrees, our unusually high degree of care, and our extraordinary design capabilities. 

Our client’s unrealistically high expectations will accrue to our disadvantage when the inevitable error or omission becomes evident. We would have been better off if we had subtly preconditioned our prospective client with the gentle forewarning that we may not always be perfect. It would appear less threatening to our client to receive such a disclosure at a time when no actual errors are yet under consideration. 

When we disclose the possibility of our imperfections, we should explain realistically what happens if a mistake in the construction documents appears during construction. 

If the mistake in the documents results in added construction cost or time it would be manifestly unfair to hold the contractor financially responsible for it. The owner, rather than the contractor, will have to pay any added construction cost attributable to non-negligent architectural error or omission. Moreover, if additional construction time is required on account of the mistake, the contractor should also be granted an appropriate time extension. The architect should furnish all related architectural services without additional charge to the owner. 

Architects Do Not Guarantee their Work. 
If the architect’s mistake does not arise from negligence or intentional misconduct, the extra construction cost and time will have to be absorbed by the owner. 

At first glance, it may seem unfair to charge the owner with mistakes made by the architect. However, architects cannot and do not guarantee that their judgment will be unflawed and that their design concepts and documents will be completely free from error or omission. 

The courts agree that architects and engineers sell service, not insurance, and that they will not be liable in the absence of negligence or intentional misconduct. An architect is required only to act with reasonable diligence and will not be liable for damages even if the results of the work are unsatisfactory. 

Professional Standard of Care. 
A California Supreme Court case is frequently cited with respect to the standard of care expected of professionals. 

The court in that case said that 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. [Gagne v. Bertran (1954) 43 Cal 2d 481, 275 P2d 15] 

Numerous other courts have agreed with this reasoning and have reached the same conclusions. Thus we are fairly certain that architects and engineers who do not violate the standard of professional care will not be held financially responsible in the absence of negligence, recklessness, or intentional misconduct. 

The law provides that absent a special agreement an architect does not imply or guarantee a perfect plan.... This court has held that the responsibility of an architect does not differ from that of a lawyer or a physician. When he possesses the requisite skill and knowledge, and in the exercise thereof has used his best judgment, he has done all the law requires. The architect is not a warrantor of his plans and specifications. The result may show a mistake or defect, although he may have exercised the reasonable skill required. 

[Lukowski v. Vecta Educ Corp. (1980) 401 Ne 2d 781 (Ind. Ct. App.)] 

Insuring a Guarantee of Perfection. 
Professional liability insurance commonly carried by architects and engineers will provide funds only for legal defense and liability for negligence. The insurance would not cover any guarantee of error-free work product should an architect ever unwisely include such a guarantee in pre-contract discussions or in the architectural services agreement. 

Purpose of Professional Liability Insurance. 
The client might well ask at this point, what is the purpose of the architect’s professional liability insurance? The architect should explain that the insurance is to cover extra costs caused by the architect’s negligent errors. This would include errors caused by improper office procedures such as assigning unqualified personnel, specifying known discredited materials or processes, or failing to check one’s work product. The insurance will not cover non-negligent error. Neither the architect nor the liability insurance carrier is a guarantor of perfection. 

For a fuller discussion of Professional Standard of Care, see Chapter 24 in “A Guide to Successful Construction - Effective Contract Administration, Third Revised Edition,” by Arthur F. O’Leary, FAIA, MRIAI, published by BNi Publications, Anaheim, California. 

See also “The Architect’s Legal Responsibility” on page 480 of the AIA Architect’s Handbook of Professional Practice, Thirteenth Edition.


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