When engineers and architects (“design professionals”) perform their respective professional services, their conduct is judged against the standard of care. The term “standard” is somewhat of a misnomer because the standard of care by which a design professional’s conduct will be assessed can take on many forms, at least between the design professional and his/her client. On July 28, 2015, I had the pleasure of speaking to the Alabama Section of the American Society of Civil Engineers in Orange Beach, AL about the standard of care as part of my risk management seminar.
Whether you have a written contract or not, the standard of care applicable to a design professional’s conduct is the common law standard if the agreement, whether oral or written, is silent on the subject. That standard (although it may expressed in slightly different wording) generally requires that the design professional perform his or her services consistent with that degree of skill, learning, and experience ordinarily exercised by other design professionals under similar circumstances. But if the design professional holds himself or herself out as a “specialist,” the design professional will be held to a higher standard of care that incorporates the specialized expertise.
The common law standard of care is not a guarantee that the design professional’s work will be perfect or error-free. See e.g., Sch. Bd. of Broward County v. Pierce Goodwin Alexander & Linville, 137 So.3d 1059, 1065 (Fla. 4th Dist. App. 2014) (quoting Bayshore Dev. Co. v. Bonfoey, 78 So. 507, 510 (1918))(“Under the common law, ‘[t]he architect's undertaking does not imply or guarantee a perfect plan.’ ”); E. Steel Constructors, Inc. v. City of Salem, 549 S.E.2d 266, 277 (W. Va. 2001)(internal quotations omitted)(“[D]esign professionals do not warrant that their work will be accurate . . . .”). Rather, the design professional’s conduct need only conform to the applicable standard of care.
Under the common law, a design professional may make an error and not be deemed “negligent” provided he/she conformed with the standard of care. For instance, in Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 419 N.W.2d 920 (N.D. 1988), an engineer designed a water system that froze shortly after becoming operational resulting in significant damage. The Court, in re-stating the general rule that “a professional does not guaranty a perfect plan or satisfactory results,” held that the design engineer was only required to exercise that degree of skill and care exercised in the profession, and the design of the system met that standard of care.
But the standard by which the design professional’s conduct will be judged can be elevated. The next post will discuss how the standard of care can be elevated by contract, statute, building codes, ordinances and other regulations.
Alabama attorney and professional engineer Jacob W. Hill practices construction law, representing general contractors, subcontractors, material suppliers, developers, architects, engineers, and other parties to construction and development projects. Contact Jacob Hill for more information or a consultation regarding your project.
Jacob W. Hill, LLC | P.O. Box 680430 | Fort Payne, AL 35968 | Phone: (256) 996-5586 | Email:
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