Liability of a Design Professional

Design professionals encompass a range of expertise and fields, from architects and engineers to planners and surveyors. What is particularly interesting is how these professionals handle an element as static as liability, in comparison to the fluidity present in the conceptual design realm. Evaluating general or construction liability under which a design professional is bound to legal text is a difficult task. Liability encompasses not only legal responsibilities, but also negligence in adhering to those responsibilities. Yet, in order to practice lawfully, every design professional must meet a standard level of care in their work and their actions. With measures taking the root of liability, its consequences, and preventive measures into account and meticulously placing it in one’s routine, design professionals can avoid liabilities to a great extent.
Areas of expertise ranging from environmental design, to security to safety issues are definitely areas of concern for design professionals. As a matter of fact, liability has increased over the years with more stringent codes and regulations in place. A design professional’s duty can be clearly interpreted from the case of Paxton, supra, 119 Cal. App. 2d, stating “care should ordinarily be practiced by the reputable members of the practicing profession and one must use reasonable diligence and his best judgment in the exercise of his skill and the application of his learning, in an effort to accomplish the purpose for which he is employed.” If a design professional falls under violation of his duties, his career is essentially at stake for negligence. This negligence not only accounts for their own work and inadequacy, but it also accounts for the failure on their behalf to notice a defect in the work of a consultant for which they are responsible for. Vagueness in specifications further adds to negligence, along with areas ranging from misinterpreting existing topography, to relying on outdated maps and data, to
specifying materials not complying with building codes, to positioning a building in violation of setback codes, and failing to inform or advise the client in regards to potential risks associated, or general ambiguity in the work that ends up becoming hazardous. An example of a case in which the design professional violated a code was in Johanson v. Huizenga Holdings, Inc., 963 F. Supp. 1175, 23 A.D.D. 485, 6 A.D. Cas. (BNA) 532 (S.D. Fla. 1997), in which the father of a disabled son allegedly claimed against the defendant, the design professional, because the architect responsible for the design of hockey arenas in the area had violated the ADA and that preliminary plans for the proposed arena actually did indicate existence of ADA violations. These allegations were sufficient to demonstrate “reasonable grounds” for discrimination in violation of ADA's new construction provision, and therefore the plaintiffs had complete authority to take action under the ADA against the architect. In the case of Watt v. U.S., 444 F. Supp. 1191 (D.D.C. 1978), the design professional was found guilty of not providing pedestrians an indication of steps existing, and therefore perpetuated a safety hazard and found guilty. As in the case of Aas v. Superior Court, 24 Cal. 4th 627, 101 Cal. Rptr. 2d 718, 12 P.3d 1125 (2000), the plaintiff held the defendant responsible for design defects that were in violation of the Uniform Building Code and indicative of the design professional’s negligence in adhering to their duty under law.
A reoccurring challenge the design professional industry faces is on the subject of claims. As the demand for the built environment reaches its peak, the expectations within society sky-rockets as well. These claims under substantive law are brought forth by clients and other third-part clients. Between such relationships, liability is imposed under tort law, especially in the absence of a contractual relationship. This often adds to the complexity in such
matters, and with little effort, a claim of legal action can even be brought against multiple defendants in a single law suit. This increase in the number of claims is directly related to the easy accessibility to the legal system individuals, clients and third parties have at a very limited expense. In fact, some cases brought against design professionals need very little to proceed. In the 1999 case of Moransais v. Heathman, the Florida Supreme Court held that the economic loss rule does not prevent a cause of action against a professional for his or her negligence, even though the damages were purely economic. Another factor that drives claims increasingly is the social change within the country. “Americans today are less willing to accept their grievances silently. They are more inclined to use the legal system if they feel they have a grievance.” (1, 247). Society today is extremely impersonal, educated, and defensive. This also triggers concerns. People today are very much concerned with the quality and nature of the built environment, including their design and safety. This involves pointing fingers, reminding the other of their responsibilities, and simply, playing the “blame game”.
Besides the frequent areas of concern of adherence to law, there are also cases where the liability may not have been perceived by the public as a duty of the design professional, but it was in fact held against them. Such instances consist of designing a space too small as per the program, designing a project that greatly exceeds the budget, specifying untested or inadequate materials, failing to know building codes and safety laws, or failing to design an element that may have prevented death. In the case of City of Eveleth v. Ruble, the Minnesota Supreme Court stated that as a design professional, one is responsible and under duty to provide services with care, skill, and diligence as ideally perceived, and its standard is based off the employment agreement, the nature of the problem and solution, and the effect anticipated from the proposed solution. If there are defects found in the existing design, the engineer or the architect may be liable for a breach of their duty in failure to warn regarding the defects. The case of S.T. Hudson Engineers, Inc. v. Pennsylvania Nat. Mut. Cas. Co., 388 N.J. Super. 592, 909 A.2d 1156 (App. Div. 2006) affirms that engineering and construction consulting firms are contractually obligated to certain precautions. In this particular case, the owners of the pier and restaurant were concerned with the danger from the collapse of the structure, and the design firm owed duty to warn the innocent third parties using the pier facilities. This was not something the design professional saw as their duty, yet it was found to be punishable under law for the negligence of liability due to their lack of supervision.
Aside from individual claims and structural liabilities, design firms face similar challenges with design consultation services and malpractice against its employees. Such claims include having allowed materials to be installed that were not approved under the building standards, failing to make changes that would comply with the codes, failing to condemn defected work, or failing to properly exercise supervisory powers. While many claims in these areas are successfully enforced as a liability on the design professional, there is also a pattern to be noted. As found by Victor O. Schinnerer & Company, it was determined that a little over 75 percent of claims are for property damage or economic loss, of which 55 percent were brought forth by the owner or the client. Furthermore, 95 percent of claims are brought forth within five years from a project’s completion, which emphasizes the importance of design especially in its preliminary and new stages, even if the downfall and damage from the design occurs later.
Third-party claims against design professionals are not only rising, but further complicating the matters of liability, especially on the design professional’s behalf. This goes on to generate more litigation, with varying state rules and judicial opinions, which in the end, become constraints. As a part of a contract agreement, American law generally does not permit people who were not bound by contractual obligation to maintain legal action for the contract’s breach. Taking this into consideration, U.S. law has however continued to steadily develop in protecting the rights of third parties in recovering from contract breach. The liability in contracts and among third parties goes on to complicate tort and contract law and its claims against design professionals. However, without contract obligations, the design professional would have limited to no involvement in the legal aspects of the project and no delineation of the duties they were obligated to. As in the case of Corinne Thompson, Appellee, v. Christie Gordon et al. (Jack E. Leisch et al., Appellants), the importance and role of a contract in aiding the design professional is analyzed. In this case specifically, the appellate court rejected the plaintiff's claim that he did not represent himself to be a licensed professional engineer and noted that an individual is professionally practicing when able to perform any service legally written under the profession, which in this case, was concerning the matter of forensic engineering. The court concluded that the plaintiff had violated the Engineering Act, noting that the plaintiff's resume stressed the plaintiff's forensic work and industrial failure investigations, thereby holding the plaintiff out as able to perform many services recognized as professional engineering practices, especially that of forensic engineering.
While it is generally understood that liability applies to codes and contracts, there is little awareness of liability in reference to professional ethics and standards of negligence. More often than not, courts have rejected arguments on the ground that the industry standards or professional rules of conduct are not suited for discussion at the statutory level. In the case of Taylor, Thon, Thomposn & Peterson v. Cannaday, the owner argued that the architect was not entitled to its fees because of his violations pertaining to the American Institute of Architects’ Architects’ Handbook of Professional Practice. The court pointed out that, unless adopted by statute, a national code would not serve as sufficient evidence of negligence. This stresses a general need for expert testimony, crucial to handling technical matters when law permits evidence of opinion testimony. In addition, professional standard requires expert testimony in order to justify a conclusion a design professional has come to, abiding by the performance of professional standards. As in the case of City of Eveleth v. Ruble, the plaintiff, City of Eveleth, had the defendant, an engineer, design a new water treatment plant. As the completion neared, difficulties further developed, such as the inadequate processing of water and its distribution, along with the pressure in the distribution lines to cause leaded joints in the line to give way. To resolve this issue, the Minnesota Supreme Court concluded that the trial judge was able to assess the validity of these excuses “without the aid of expert testimony.” The court further stated that no expert opinion was needed to justify the design engineer’s responsibility of analyzing the structural characteristics of the existing plant and held the opinion that the construction-phase services provided did not require specialized technical skills. Therefore, the federal district court interpreting Louisiana law did not require expert testimony to find an engineering firm negligent in failing to discover overbilling and other fraudulent conduct by the contractor it was supervising.
In the case expert testimony is sought, the party intending to call an expert witness must notify the other party before trial of the identity and qualifications of the expert and the issues on which the expert testimony was prompted. From there, the expert must give his or her opinion based on their firsthand knowledge in the field of expertise. Finally, in regards to the testimonial component, local law must be consulted. Laws look at the process by which the services were to be performed by the design professional and the professional standards to which one should abide by. In providing design services, the design professional is obligated to develop an understanding with the client and put forth a successful plan of services. At times, in order to prove that the defendant, a design professional, adhered to the applicable codes and standard of care, expert testimony is required. In the case of James Corp. v. North Allegheny School Dist., 938 A.2d 474, 228 Ed. Law Rep. 373 (Pa. Commw. Ct. 2007), the court held that expert testimony was essential in determining that the defendant, the architect, rather than the school district, was responsible for delays on a school renovation project. Because the district failed to present any testimony regarding the architect's standard of care under the contract, or that architect's conduct fell below any standard, the court affirmed the trial court's finding that the architect was not negligent. ddddddddddd There are also risk considerations in design-build projects which lacks awareness. A large portion of these risks are financial, depending on the role the design professional is playing in the project. Because design-build projects are based on equity participation and the prime role is played by the design professional, there is also a greater risk with the greater liability. As mentioned earlier, besides the design and aesthetics of the project, the design professional can be held accountable for improper specifications, material failures, construction delays, and severe losses associated with the project. As a matter of fact, much of the risk that the designer endures comes from the hands of the owner. The project may further be complicated if the design professional takes on added responsibility of the subcontractor by specifying materials
and finishes of their share. If the design specifications are not as per the standard or are found to be in violation, the design professional would in fact be penalized. From a financial perspective, the design professional should allocate appropriate funds taking into consideration the profit margin and contract prices and the room for malpractice and court fees. Under the most ideal situation, the design professional should refrain from taking on added responsibilities that would contribute to liability.
Although negligence of liability places a great deal of risk on the design professional, there are cases under which claims can be rightfully defended. For instance, if the defendant observed standard of care as per the contract, his duty would have been lawfully served. Contractual relationships are very important and should be reviewed thoroughly before its exchange between the two parties. Also, if it is found that there was no such direct connection between the defendant’s, the design professional, conduct and the plaintiff’s injury, the defendant would not be held liable because the defendant may only have contributed to the damage or loss and not actually have been the cause of it. Similarly, if the design professional, such as an architect or an engineer, was already given negligent plans or specifications that result in defects, defense is applicable. As in the case of SME Industries, Inc. v. Thompson, Ventulett, Stainback and Associates, Inc., 2001 UT 54, 28 P.3d 669 (Utah 2001), a claim based on an architect or engineer's breach of warranty may be covered under the contract, attempts to hold architects and engineers liable on breach of implied warranty by claiming liability for defective plans or specifications are doubtful to succeed. Courts have generally rejected these claims on grounds that engineers or architects are the providers of professional services and not sellers of goods placed in the stream of commerce. In another case, Hutcheson v. Eastern Engineering Co., 132 Ga. App. 885, 209 S.E.2d 680 (1974), an architectural and engineering company was not held liable for the death of a construction worker who accidentally fell into an uncompleted elevator shaft and was also struck by building materials. The plaintiff alleged that the defendant's design was defective because guardrails around the shaft were removable and should not have been. The court said that there was no negligence on the part of the defendant because the shaft was not designed for construction purposes, and the defendant did not have responsibility for the transportation of building materials during construction or control over the way in which the shaft was used by construction workers. With this line of reasoning, the design professional was protected under law.
Often there is debate about the design professional’s role in the design process. As design professionals, they are committed to care of the services they provide, and as a client or owner, to the care of the facility or the end product that is given. In the case of Del Mar Beach Club Owners Assn. v. Imperial Contracting Co., 123 Cal. App. 3d 898, 176 Cal. Rptr. 886, 25 A.L.R.4th 336 (4th Dist. 1981), the owner of a beachfront development failed to state a cause of action in strict liability in tort against the design professionals responsible for the design of the development, because according to the law, the design professional, in this case the engineers, is the one to provide services and, therefore, not subject to liability, absent negligence or intentional misconduct. There are also cases of liability split between two parties, where at times, the negligence of an architect or engineer will combine with the negligence of another party, particularly a contractor, in causing damage to the plaintiff's property.
So how should design professionals protect themselves against liability? The answer is in adherence to one’s duties. This entails the defendant's testimony to take necessary steps and procedures in order to prepare plans or specifications that aid in justifying their adherence to the standard of care. For example, in Paxton v. Alameda County, 119 Cal. App. 2d 393, 259 P.2d 934 (1st Dist. 1953), an architect who prepared plans and specifications for a livestock pavilion testified that he considered the requirements of its county building ordinance in determining the type of roof sheathing and the spacing between rafters necessary and abided by the same construction process as that which was in effect and accepted in earlier projects. Therefore, he was able to clearly justify his design and use of the assigned livestock pavilion.
The severity of some cases and the complications they entail brings into question whether the design professional should have a different standard of professional care relative to other professionals. Should special exemptions be in place for design professionals when harm or damage has been done, because they are providing services and not a physical product of any sort? With a fear of liability and negligence, is the design professional “overdesigning” as a precautionary step to avoid liability? Does that lessen or further complicate the liability between both parties, the client and the professional? There are antitrust laws in place that view its members more as businesspeople than as design professionals. When analyzing the client and professional relationship, which allows for negotiations contractually, application of liability negotiations between the two parties should exist as well. Also, often times the professional standard is found to be unrefined and not inclusive of sufficient attention to clear analysis particularly because of the level of education and limited technological advancement required for a design professional to practice out in the field. But perhaps, as of current time, courts have not differentiated the standard of care among professions because of the uncertainty some professions, such as the design profession, carry. There is hesitation as to the
unreasonable expectations this change may carry and its effect on warranty or insurance on the design professional’s behalf.
Measures to be taken in avoiding liability can be achieved through proper contractual risk management. It should begin with a contract that exactly highlights the scope of services and the expectations from the design professional on the project, highlighting the difference between what basic services are required and what qualifies as additional services. The design professional should clearly be able to determine his role and determine how the work would be performed and acknowledging the responsibility if the contractor does not comply with the contract documents.
In terms of vulnerability to consequential damages, the design professional should acknowledge that the breaching party is not chargeable with consequential or less direct damages and its limitations towards a contracting party’s requirements. Because the courts may diminish that right under the foreseeability requirement, the design professional should specify his exclusion of liability for any consequential damages. For example, in the AIA Document A2012007, Section 8.1.3 for Architects or the EJCDC E-500 Paragraph 6.10(E) (2008), along with other major standard documents for design and construction, the requirements under each contracting party waives consequential damages against the other.
To address the growing risks from third-party claims, it is ideal that the design professional seek liability to the client. In the complex realm of real estate development transactions, the design professional is not always able to accurately anticipate the likelihood of third-party claimants. In the case of F.H. Paschen/ S.S. Nielson, Inc. v. Burnham Station L.L.C., 372 III. App.3d 89, 865 N.E. 2d 228 (2007), a rehearing was denied after the court held the opinion that the third-party claimants on file, the investors of a failed venture, were not third-party beneficiaries of the architect’s contract, and therefore, the tort claim was barred by the economic loss rule. To properly manage third-party claims, a design professional must obtain an agreement with its client under which there is indemnification from the third-party claims and easement provided covering the design professional’s liability, such as in the hybrid clause of EJDC Document E500, Paragraph 6.10(E). However, convincing the client to agree to a provision is not an easy task. In that event, the design professional should express to the client their allocation of risks under their modest fees or perhaps the inclusion of a fee reduction if savings in insurance premium are paid by the design professional. What is most important is that the process by which disputes and arguments occur be resolved through contractual risk management strategies.