Jay Gregory | Construction Law Blog
One of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing.
Although we have this ready definition of the standard of care, in any given dispute it is practically inevitable that the parties will have markedly different opinions as to: (1) what the standard of care required of the designer; and (2) whether the defendant design professional complied with that requirement. The claimant bringing a claim against a design professional typically will be able to find an expert reasonably qualified (at least on paper) who will offer an opinion that the defendant failed to comply with the standard of care. It is just as likely that the counsel for the defendant design professional will be able to find his or her own expert who will counter the opinion of the claimant’s expert and maintain that the defendant design professional, in fact, complied with the standard of care. What’s a jury to think?
The concept of standard of care is intertwined with the legal concept of negligence. In the vast majority of law suits against design professionals, a claimant (known as the plaintiff) will assert a claim for negligence against the design professional now known as the defendant.1 As every first year law student learns while studying the field of “Torts,” negligence has four subparts. In order for a defendant to be found negligent, the claimant must establish four elements: (1) duty; (2) breach; (3) causation; and (4) damages. In other words, to establish a claim against a defendant design professional, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care but breached that duty and, as a result, caused the plaintiff to suffer damages.
This formulation of a negligence claim is universal – it applies to claims against reckless drivers as well as claims against design professionals. In a situation in which a claimant is bringing a claim against a design professional the concept of the standard of care applies in the first two elements (i.e., duty and breach). Take for example a typical construction accident in which a worker is injured during the construction phase of a project. Depending upon the severity of the injury, a lawyer for the injured worker will sue some or all of the participants in a construction project.2 Imagine a situation in which an iron worker falls off a beam during construction, drops ten feet to the floor below, and breaks some bones. This worker will have a worker’s compensation claim against his employer regardless of fault. Even if the worker fell from the beam as a result of his dancing drunk, he is entitled to receive worker’s compensation benefits. After processing the workers compensation claim, the injured worker’s enterprising lawyer will often look to other participants in the design and construction process and assert what is known in the industry as a “third party claim.” If this lawyer sues either the architect or engineer (typically structural), he will make an argument that the design professionals owed the worker a duty (i.e., the first of the four negligence elements) to ensure that the work site was reasonably safe. The lawyer will craft an argument that the design professionals failed to meet this duty by either designing an unsafe building (a difficult argument to make especially if the accident happened during the construction phase) or will argue that the design professionals breached their duty by “allowing” a dangerous condition to exist on the site. In either case, to prevail on his claim, the plaintiff’s lawyer will have to establish that either one or both of the design professionals owed a duty to the worker as a result of application of: (1) the standard of care; or (2) as a result of contractual obligations.
As most design professionals would agree, it is extremely rare throughout the country that a designer is responsible on a project for site safety or for controlling the means, methods, sequences, techniques, or procedures of construction. Thus, it would be extremely difficult for a plaintiff’s counsel to locate a qualified expert who would venture an opinion that the standard of care required an architect or engineer to protect the injured iron worker.
This example of the injured iron worker highlights an important aspect of the concept of duty. As most design professionals understand and appreciate, standard form agreements typically emphasize the fact that design professionals have no obligation to ensure construction means and methods or to ensure site safety during the construction phase. Typically, the contactors (i.e., the entities most capable of controlling construction and site safety) are exclusively responsible therefore. What this means in practical terms is that in any construction accident case the best defense for a design professional is typically found in the construction agreements for that project.
Just as contractual provisions protect a design professional; the wrong provisions can also inadvertently create exposure for a design professional by, among other things, heightening the standard of care. This issue is not present in most cases in which standard form agreements are used. In cases in which an owner has modified a standard from agreement or uses his or her own contract language, be wary of contractual provisions that specifically increase the standard of care applicable to a design professional. For example, some owners insert in their contracts provisions requiring that the design professional perform its services consistent with the “best” practices employed in the design community or must use “superior” or “maximum” efforts. Contract provisions such as these are problematic for a number of reasons. First, such provisions can effectively increase the standard of care applicable to a design professional over and above what would apply in a specific situation. Looked at using the legal terms referenced above, by agreeing in a contract to use “best” or “superior” efforts, a design professional will increase or heighten the duty which he or she owes on a particular project. In such a situation, it is no defense to a negligence claim to argue that a design professional complied with the applicable standard of care and did exactly what a reasonably prudent practitioner would and should do. If by contract a design professional is obligated to use “best” efforts, then anything less (even if it complies with the standard of care) would represent a breach of the contract and, as a result, would create exposure for the design professional.
These types of contract provisions which heighten the standard of care are also problematic as they may inadvertently jeopardize insurance coverage. Most professional liability policies cover a design professional’s negligence. As noted above, generally speaking, a design professional is negligent when he or she fails to comply with the standard of care. When a claimant asserts a claim against a design professional, the insurance company will review the allegations in the complaint to determine if the claimant is alleging that the insured design professional was negligent or is alleging something else such as an intentional wrong (not covered), breach of contract (not covered), or violation of a consumer protection act such as chapter 93A (not covered). If a claimant asserts a claim that the design professional failed to comply with its contractual obligations to use “best” or “superior” efforts, then the insurance company has a valid argument that there is no insurance coverage. An insurance company in such a situation could deny coverage on the basis that the design professional is not being accused of negligence (a covered claim) but, instead, is being accused of breaching its contract (not covered). In this regard, most professional liability policies include a provision specifically excluding from coverage any obligation assumed by the design professional in its contract.3
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