Construction Law: Ordinary & Reasonable

The Standard of Care for Architects

by Ryan Markham, Cotney Construction Law

(Editor’s Note:  Ryan Markham is an attorney at Cotney Construction Law, focusing his practice in the area of construction law.  Markham has extensive experience in delay claims, mechanic’s and materialman’s liens, bond claims, defects, bid protests, contract review, contract negotiations, and OSHA defense.  For more information, go to www.cotneycl.com.)

Generally, the law recognizes that when it comes to architectural services, decisions are based on reasoned judgment and there is usually not just one right course of action for any project.  The common law standard of care for performance of architects is defined as the ordinary and reasonable care usually exercised by an architect, on the same type of project, at the same time and in the same place, under similar circumstances and conditions.  It is important to note that this standard does not call for perfection, and owners expecting perfection will be deemed unreasonable. 

         In most cases, the architect is generally bound to this standard of providing ordinary and reasonable care to any project.  The American Institute of Architects includes the architect’s responsibilities with regard to their services in their B101 Standard Owner/Architect Agreement: “The architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances.  The architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the project.”

         The same would follow then for any agreement entered into by an architect for design services, in that each responsibility and duty called out in the agreement would have to be performed in accordance with the ordinary and reasonable care standard.  Other standard language we may see in design agreements include: “Consultant shall perform its services consistent with the professional skill and care ordinarily provided by firms practicing in the same or similar locality under the same or similar circumstances.”

         Just because a design services agreement does not contain language with regard to the standard of care in which the services are to be performed, it does not mean that the standard of care does not apply.  The common law standard will still apply to this work as owners have successfully argued that this standard is implied in any agreement for design services. 

         How does one establish what the ordinary and reasonable care standard is?  If an owner is claiming that an architect deviated from this standard on a project, then the owner must establish that the architect’s act, error, or omission was negligent in that it failed to meet the ordinary and reasonable care standard. 

         To establish this, the owner is required to utilize expert testimony to explain what the ordinary and reasonable course of conduct would have been, and how the architect deviated from it.  The architect would engage a rebuttal expert, which would explain how the architect’s conduct on the project conformed with the standard of care. 

         Procuring and maintaining professional liability insurance will help architects safeguard against these claims.  A professional liability insurance carrier will generally indemnify and defend architects under professional liability claims.  Be wary of owners who seem to demand perfection on a project, and make sure you are documenting your work every step of the way should you need to show how your work conforms to the standard of care.  As always, if you have any questions, please consult with an attorney.

Please follow and like us: