Standard of Care

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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1 For reasons that are not entirely clear, in the context of an arbitration proceeding, the person asserting the claim is the claimant, while the target of the claim is the respondent.
2 Unfortunately, there is typically a direct relationship between the severity of an injury and the number of parties whom the plaintiff will sue. In other words, the greater injuries, the more defendants will be included in the law suit.
3 Other examples of such exclusion are indemnity provisions. Design professionals have to be extremely careful when agreeing in a contract to defend or indemnify the client or a third-party. Unless the indemnity provision is carefully written, it can create an obligation on the part of the design professional which is not covered by professional liability insurance.

Language in Websites Can Inadvertently Create Legal Exposure for Design Professionals

Personal injury plaintiff’s counsel can be crafty if not down-right devious. When a worker dies or sustains a serious injury on a construction site, lawyers who specialize in plaintiff’s personal injury work often swoop in and sue all of the project participants regardless of the participant’s involvement in or responsibility for the accident. These lawyers try to spread as wide a net as possible in order to capture the largest pool of potential contributors. They follow the maxim “shoot first, aim later.” The primary targets in construction accident law suits are usually the general contractor or construction manager – the party who by contract is typically responsible for maintaining site safety. In addition to suing GC’s or CM’s contractually responsible for safety, however, personal injury plaintiff’s counsel do not hesitate to sue design professionals who according to their contracts have no responsibility for safety issues. As most design professionals are aware Standard Form Agreements such as iterations of the AIA Owner/Architect Agreements include unambiguous provisions exempting architects from responsibility for safety. For example, article 3.6.2.2 in the AIA B101 (2007 edition) provides in part:

“The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the Architect be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents.” (Emphasis supplied)

This contract clause is extremely important as it can serve as the basis for a dispositive motion and lead to the dismissal of the claim. In order for a plaintiff to prevail against a design professional in a personal injury case (i.e., a negligence claim), the plaintiff must establish that the design professional breached a duty that he/she owed to the plaintiff and that as a result of this breach, the plaintiff was injured. The key to defeating such a negligence claim is to show that the design professional did not owe a duty to the injured plaintiff, for example, to protect the plaintiff from injury. Contract clauses such as 3.6.2.2 above make it clear that – contrary to the plaintiff’s allegations of wrongdoing by the architect – the architect did not owe a duty to the plaintiff to maintain site safety. If the architect has no duty to maintain site safety, the architect can not be accused of “failing” to protect the plaintiff from injury.

This is a potent argument that often prevails but it is not failsafe. Seasoned plaintiff’s counsel understand that regardless of contract language in an Owner/Architect Agreement excepting the architect from responsibility for site safety, that architect by his or her conduct may assume broader responsibilities than are described in the contract. For example, if the architect participates in safety meetings with the contractor or actually directs or controls safety precautions on site, then the protections of clauses such as 3.6.2.2 are undermined if not obliterated. The rationale behind this result is that if an actor assumes by conduct responsibility for an act, that actor has a duty to perform that act reasonably safely – i.e., without negligence. One example of this concept is the person who while walking along a river sees a swimmer in distress and decides to try to rescue him. This Good Samaritan has no duty to save or protect the swimmer and can not be legally liable if they do not attempt a rescue and the swimmer dies. Once the Good Samaritan dives into the water and attempts to rescue the swimmer in distress, however, he assumes a duty to perform the rescue in a safe and reasonable manner. If something goes wrong with the rescue and the Good Samaritan inadvertently injures the swimmer, the Good Samaritan can be legally liable to the now injured swimmer. It doesn’t matter that the swimmer would have died but for the Good Samaritan’s rescue.

Turning back to the scenario of the injured construction worker, if the Owner/Architect Agreement (and/or the other contracts between the project participants) contain clauses such as 3.6.2.2 that make the contractor exclusively responsible for construction means and methods and maintaining site safety, the plaintiff’s counsel will focus her discovery efforts exploring if the design professional actually assumed duties beyond those established in the design professional’s contract. In a recent case I handled, the plaintiff’s counsel was able to support his argument that the design professional assumed responsibility for site safety by examining the design professional’s website. In this particular case an electrical subcontractor sustained significant, disfiguring facial injuries through an electrocution accident. He was injured when he worked on an energized electrical substation. He mistakenly believed that the substation had been de-energized and he failed to test a tie bus before he did his work. Following the accident, the lawyer for the injured worker sued everyone involved in the project including my client, the electrical engineer. By contract, the electrical engineer had no responsibility for maintaining site safety. During the construction phase the electrical engineer had only minimal site responsibilities. At the deposition of the electrical engineer the plaintiff’s counsel attempted to build a case against the electrical engineer by showing that the engineer was part of the “team” of project participants who controlled site safety. In support of this theory, the plaintiff’s counsel showed the electrical engineer a print out of the company’s website. For better or worse, this website included several aspirational statements that touted the firm’s “vision” and “values.” The website included marketing buzz words such as integrity, quality service, teamwork, and innovation. It also included an easily misconstrued statement that the engineer “customize[s]our mechanical and electrical design solutions so our clients can safely perform full maintenance, testing, and capacity expansions without affecting mission critical equipment or business operations.” (Emphasis supplied) During the deposition the plaintiff’s counsel pressed the electrical engineer to admit that the engineer followed these goals on the subject project.  He asked such questions as “Isn’t it fair to say that on this project, consistent with the representations in your website, you customized the electrical design so that the owner could safely construct, maintain and test the substations?” The electrical engineer had a difficult time maneuvering through this conceptual mine field.

In the final analysis, language in a design professional’s website does not establish that design professional’s contractual obligations on a project but it creates enough uncertainty that it may make it difficult for the design professional to have a judge dismiss the plaintiff’s claims through a motion for summary judgment. If a design professional is unable to achieve summary judgment because of language in the design professional’s website, the plaintiff’s counsel has won a major battle. Most significant construction accident/death cases never get to trial. Instead, the defendants remaining in the case after all dispositive motions have been decided typically contribute money to the plaintiff and settle the case rather than risk a greater adverse verdict at trial.

The moral of the story is that design professionals would be well-advised to examine their websites to ensure that they do not contain language that: (1) arguably create duties that go beyond the design professional’s contractual obligations; and (2) could inadvertently prevent that design professional from being dismissed from a law suit.