Arthur O'Leary, FAIA, MRIAI
Posted: December 20, 2017 | Legal Advice
As architects and engineers we all do our utmost to carry out faithfully the terms and conditions of the professional service agreements we enter into. We all strive to do our very best professional work, but occasionally the physical or administrative results as perceived by our clients are not completely acceptable. They may feel that we have not been sufficiently diligent or have performed some part of our duties at a substandard level. The project may have exceeded the client’s budgetary or completion time expectations. There may be defects in the finished product for which our clients would seek to hold us financially responsible. As a matter of fact, we can be held legally responsible for our clients’ financial losses if we are proven to have been negligent.
Negligence is a technical legal term, so how can we know what it means? We can be held negligent if we are not reasonably competent or have failed to exercise due care under the circumstances. This means that 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 our-selves in the same or superior manner as the aver-age 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 ser-vice 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 which are clearly beyond our own technical abilities or those of the personnel we have available to work on the assignment. 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 consultants to supplement its own capabilities.
We are not required to be the best practitioner in the community nor even to be above average. But we must meet the minimum acceptable standard in the community. What is meant by community? In some regional localities standard architectural practices vary in some respects from other areas. So it is necessary to know of any local peculiarities or variations where you practice. This is of particular importance when you have projects which are to be constructed in unfamiliar territory. However, most aspects of architectural practice and usage are very similar all over the U.S. This is becoming more prevalent as common use of AIA standard contract and practice documents increases nationally. Our extensive national architectural press, being widely read by architects, tends to encourage standardization. Regional differences are becoming less significant as national transportation and technical communication is improved. So, in some specific respects, the community might represent a local district or state, while in most aspects the architectural and construction community undoubtedly comprise the whole country.
Determining Professional Standards
How can an architect know what the professional standard of care is? Becoming aware of the standard of care is closely interrelated with continuing education. The burden is on each architect to keep informed on a current continuing basis and on each firm to assure that its personnel maintain and improve their professional skills.
There are numerous ways in which to build awareness of the standard of care simultaneous with enhancing your professional skills:
Subscribe to and read the professional press including the national architectural, engineering, and construction magazines as well as the regional and local publications.
Review the latest manufacturers’ literature. Often this will be found in your daily “junk mail”.Associate with other architects. This is most easily accomplished by joining and becoming active in professional societies such as AIA, SARA, and CSI, and is most effective when you participate in the activities of interesting committees.
Attend seminars, workshops, and other continuing education offerings.
Examine other architects’ work and review their construction documents whenever possible.Participate in peer review pro-grams, both as reviewer and reviewee, wherever they are offered.
Teach courses, give talks, and write articles whenever the opportunity arises. Preparation and study for giving a talk will be far more educational for you than it will be for the audience.
All of these diverse activities will give you a general overview of the ways in which other architects think, approach their assignments, and conduct their practices. It will also present opportunities to consult with fellow professionals on practice problems and to discuss subjects of mutual interest.
Younger architects should make friends with more experienced practitioners so they can pick up the telephone at any time for an informal consultation. All architects, regardless of age, should have architect and engineer friends they can use as telephone resources as the need arises or to obtain a candid second opinion.
Failure Of Materials Or Procedures
It is extremely important that we keep ourselves aware of new developments in construction technology as they occur. This is particularly true of recent discoveries of unsatisfactory materials or processes. Architects will usually be found negligent if they continue specifying materials or procedures which have been proven harmful or unsuccessful. This was the case with asbestos products and polychlorinated biphenyl (PCB) which were widely used until their hazardous properties became generally known. A number of other materials in common use were later discredited for certain uses as more extensive experience revealed their shortcomings. Some newly developed materials and procedures have not been in use sufficiently long for any of us to know how effectively they will perform over an extended period of time.
Architects are not expected to conduct physical testing programs in the laboratory or field. However they are required to be aware of the physical and engineering properties of the materials and processes which they specify and they must properly apply the generally accepted principles of proper construction design. They are also required to keep informed of new technological developments as the information becomes generally available in the technical literature.
Innovation is often considered desirable, creative, and at the cutting edge of our profession. But if the new material, new use of an old material, or a new process fails to perform as anticipated, the specifying architect could be found negligent. To limit this possibility, it is necessary to do the appropriate investigation and obtain the in-formed consent of your client when pioneering in new areas. The same principles apply to use of inexperienced or unrecommended contractors, suppliers, or engineering consultants.
Another form of innovation is in the area of contract document presentation or contract administration procedures. For example, if a new method or format of notation or dimensioning is used, any losses attributed to failure of communication could be charged to the author. Novel, experimental, or unique procedures which fail in some way could be held to be a deviation from the architectural standard of care.
Several years ago an architect reasoned that an effective way of eliminating liability for erroneous or inadvertent approval of defective shop drawings would be to specify that no shop drawings need be submitted. This would certainly be successful in achieving the stated objective but could prove to be disastrous if a situation arose on the project that might have been avoided if shop drawings had been reviewed by the architect. If architects in a community generally review shop drawings of certain trades, then it is potentially perilous to eliminate or deviate from this procedure.
Reviewing Your Own Work
It is common practice for architects to check their own work and the work of their engineering consultants. They review the drawings, specifications, and bidding documents for compliance with clients’ instructions and program and the building code, proper use of materials, and correct application of construction techniques and processes. They also check for coordination within the documents and for carrying out the recommendations of expert consult-ants such as soils engineers and land surveyors. Architects who do not utilize normal checking procedures are not meeting the standard of care when it is a general practice among architects to do so.
Architect Not a Guarantor
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 exercises 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 P. 2d 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.
Others’ Reliance On Architect’s Skill
Not only the owner, but contractors, subcontractors, suppliers, and sureties also rely on the architect’s special skill and adherence to the professional standard of care. If any of these entities perceive that their major financial losses, injuries, and inconveniences are in any way caused by the architect’s negligence then they will undoubtedly be advised by their counsel to pursue a legal claim against the architect.
The architect’s or engineer’s main legal defense to a negligence claim is proof of compliance with the professional standard of care. This is generally demonstrated through the medium of testimony of expert witnesses skilled in the same discipline. Judges and juries will not normally presume to judge compliance with the standard of professional care but will rely on the expert testimony of qualified architects or engineers. However, if experts on both sides of a controversy disagree, the judge, jury, or arbitrator will then have to decide who to believe.