33
Chapter 11
As with Chapter 10, Chapter 11 is more like a law school textbook, in which
the student is expected to read court cases and then discuss them. The major
issues that surface in almost every case are:
1. The standard to which the design professional will be held;
3. Whether liability depends upon the particular type of service being
performed.
4. Whether there is any differentiation between personal harm, property
damage and economic loss.
First let us look at the standard that is used to determine whether the design
professional or any other defendant has performed properly. From the many
11.2 is crucial. Violation of a statute (especially building codes) may establish
negligence per se—a finding of negligence by order of the court. Designers must
be aware of the statutory framework within which they operate. (This may also
extend to consumer protection statutes, as pointed out in Section 11.4B.) By
contrast, industry standards and professional ethics generally do not establish
negligence (although industry standards may be admissible).
Section 11.3 on expert testimony plays a dual purpose. The concept of liability
cannot be fully understood without knowing how liability is proved. This
discussion thus properly exists within a chapter on design professional liability.
34
The remainder of the chapter divides between liability to clients and liability to
third parties.
As for liability to clients, Section 11.5B provides the legal framework (such as it
is) to the green or sustainable design and construction field. One topic for class
discussion: How is the standard of care to be defined where the expectations
between the client and design professional are likely to be divergent, and the
Figure 11.1 (on third–party claims) merits class attention. Why is the list of
potential claimants so long? Are the design professionals expanding the list of
services they offer? Are plaintiff’s attorneys getting smarter? Are Americans
suing at the drop of a hat? Whatever the reasons we are fearful that seeing such
a graphic display may frighten students, causing a few to drop out or making
those that remain afraid that no matter how hard they try they will be certain that
they will be in court. (This is one reason we scatter throughout the book
protective measures design professionals may take.)
Of course the ELR does not extend to personal injury claims, the topic of
Section 11.8F. The student is confronted (yet again) with the dual nature of legal
regulation: common law and statutory (the OSH Act or state safe workplace
statutes).
Section 11.8G addresses an architect’s or engineer’s duty to warn. Although
rarely a successful claim, the topic highlights a wider audience affected by a
design professional’s decisions.
Answers to Chapter Questions
1.) Since design professionals are generally held to the professional standard of care,
what are the two things a judge or jury must be able to understand and evaluate?
2.) According to the Oklahoma Supreme Court, what conditions must be met in order
for a person to testify as an expert witness?
3.) If a design professional is considering becoming an expert witness, what four things
should be present in the written understanding that precedes any services being
performed?
4.) What are the advantages and disadvantages of bringing a claim based on breach of
contract versus bringing a claim under tort law?
5.) According to the AIA B101–2007 Document, what responsibility does the architect
have in regard to green design, and what additional services are addressed?
a. Section 3.2 of B101–2007, which covers the schematic design phase,
6.) Who is likely to bring a third-party beneficiary claim against the design professional,
what is the nature of that claim, and what is its likelihood of success??
7.) What is a contractor required to show in a claim of negligent misrepresentation?
8.) What are the two defenses a design professional may raise against a claim of
negligent misrepresentation?
9.) What are the competing approaches by the Bilt–Rite and SME Industries courts that
led them to come to opposite conclusions on whether a contractor or subcontractor
claim for financial losses, brought against a design professional, is barred by the
economic loss rule?
10.) Under what legal theories would an injured construction worker seek to
impose liability upon the design professional?