Architects/Engineers Beware: A Change May Be Coming

Peer Practice Tested Against Typical Jury Instructions

The present law in most states is that architects or engineers may be held legally responsible for faulty designs or services only if they are negligent. Negligence in this sense is the failure of the architect or engineer to exercise that degree of care or skill customarily exercised by prudent architects/engineers under the same or similar circumstances.

Thus, in a case where an architect is accused of negligence, the typical instruction which would be given to the jury or the law which would be followed by a judge in a non-jury trial would be:

Perfect Results Not Required Under Negligence Theory

It is the duty of an architect in his work to employ that degree of knowledge, skill, and judgment ordinarily possessed by members of that profession, and to perform faithfully and diligently any service undertaken as an architect in the manner a reasonably careful architect would do under the same or similar circumstances. The failure to perform such duty constitutes negligence. Colorado Jury Instructions (Civil) 2d 15:18 (1980) It is readily apparent from the quoted instruction that perfect results are not required of the architect/engineer under the negligence rule. Instead, he must only conform to the standard of care exercised by his peers under the same or similar circumstances.

Is Architecture Or Engineering An Art Or A Science?

However, signs of change loom on the horizon. In a very recent Kansas case, the Supreme Court of that state ruled that the law of warranty would apply to an architect. The court held that the architect impliedly warrants that his services will achieve the result called for under the contract between him and his client. In its discussion, the court expressed its opinion that architecture and engineering are sciences, capable of precision unlike the practice of law or medicine which involve inexact sciences.

In defense of the Kansas Court, it is noted that the complaint against the architect involved his alleged failure to properly inspect and check grading and drainage problems which resulted from excessive dirt removal. Surely, the grades were scientifically determinable.

However, it may be argued that architecture and engineering are not always exact sciences. New materials, different applications, even changing atmospheric conditions appear to render architecture and engineering practices inexact in many aspects. If architects and engineers are forced to limit themselves to established methods, materials, etc., there will be little or no advancement into new and untried areas of design. One must wonder whether Buckminster Fuller would have conceived the geodesic domed structure if he would have legally been required to guarantee its performance.

Concern Of The Owner

On the other hand, the Kansas decision will be praised from the owner’s standpoint, Owners presumably engage design professionals to provide architectural and engineering services expecting that they will produce sound and satisfactory results if the contractor builds in accordance with the plans and specifications. The owner would certainly argue that it would have been possible for his architect and engineers to achieve successful results – unless, of course, the owner had knowingly agreed to previously untried or untested designs.

Whether other states will follow the lead of the Kansas court in the case considered, Tamarac Development Co., Inc. v. Delawater Freund & Associates, P A., 234 Kan. 618, 675 P.2d 361(1984), remains to be seen. What is certain is that more and more owners will insist that their courts adopt the warranty theories and that an equal number of architects or engineers will argue otherwise.

This Brief s practical suggestions are:

1. Architects and engineers be aware of the possible changes in the law, A/E PROTECT70N.S
2. The professions consider whether to state in their contracts that they make no warranties, express or implied, with respect to the quality or character of their work,
3. Architects/engineers determine whether their professional liability insurance covers liability for breach of implied warranties,
4. When marginal or untested designs are being considered, the concepts and risks should be discussed with the owner and should he be required to make the decision and agree to assume the consequences, and
5. If warranty theories are adopted, the professions should be prepared to address their grievances to their state legislatures.