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Designer Liability From A Forensic Architects Point of View?

By William Henry, PhD

“Your Architect Cannot Deliver Perfection”

As a forensic architect and court certified expert witness, I am often engaged by both plaintiff and defense counsel to opine on whether an architect has committed errors and omissions that would lead to liability exposure. What actions by architects constitute errors and omissions (E&O) that could lead to damages incurred by property owners, clients, and/or victims of construction site injuries?

A Take On Errors And Omissions

Prior to attempting to offer up yet another definition of E&O, we need to establish that according to most industry wide standards, a professional architect need not be perfect in rendering his service. Particularly with respect to the delivery of complex building projects, E&O will occur. The best gauge of whether liability can be assigned is whether the design professional used “reasonable care and good professional judgment in the rendering of the service”. Therefore, it is important for consumers, clients, and others ready to assign blame, to consider this interpretation. In many depositions that I have been a party to, there is an unrealistic expectation of what an architect can do and what he can provide in the way of so called product delivery. Architects DO NOT provide and warrant a product. Yet, I have heard countless homeowners, real estate developers, other functionaries and their attorneys state flat out that the architect owed them a perfect product which was theirs to keep.

Along with very competent legal counselors we have had the good fortune of serving, we have consistently defeated this position in court proceedings because architects, just as attorneys and physicians, cannot warrant success as an outcome. Case in point, patients die and attorney’s clients go to jail. This outcome does not necessarily constitute malpractice despite what many attorneys who advertise claim.

When Is The Designer Liable For E&O?

There are two forms of liability. One form is simply termed an ‘omission’ of some needed built component of the project whose absence would lead to a deficiency. The omission could be egregious leading to code non-compliance (breach); or relatively minor in that the component could easily be installed later on without impact to cost. If the omission is more like the latter, then it is typically turned a ‘first cost’. This rarely constitutes malpractice. However, the former can lead to liability since the omission may not be easily cured and/or some of the project work would need to be demolished. This is termed a ‘second cost’ and can lead to serious damages because the cure may not be easily performed and/or have major associated cost impacts.

Errors can be simple or serious mistakes in the rendering of the service. When errors are committed involving life safety and code compliance and their consequences find their way into the project construction, claims can often follow. Particularly serious are those code violations which contribute to compromising the protection of the health, safety, and welfare of the general public. If it is discovered because someone becomes injured as a result, then claims and lawsuits will likely ensue.

The Architects Role Defined

In the above proceedings, how is the architect viewed? Plaintiff’s counsel, who represents the damaged party, will wish to expand the definition of the architect’s role. In short, the architect who acts as a so call “master builder” incurs an expanded liability potential. By contrast, those defending architects will wish to limit the scope of the design practitioner to that of a so called “computer-aided design” operator. Such an architect would ideally never visit the site and would be “blissfully ignorant” of anything beyond what was provided by his client. Which definition is correct? I have searched the Florida State Statues governing professional practice and found no definition of an architects role. The only definition available is a description of the architect’s education (from an accredited educational institution) and licensure by passing various exams (National Council of Architectural Registration Boards ‘NCARB’), and a required period of apprenticeship.

This lack of clarity as to the architect’s role has not only left the profession in some turmoil but created a vacuum for attorneys to have a field day. It is very similar to the condition that physicians find themselves in today who would rather limit their expertise to a certain component of the body e.g. knees vs. thigh bones or ankles. The vacuum in both professions has caused the need for paraprofessional generalists. In the healthcare industry so called “coaches or health care advocate” have emerged to coordinate specialists in the event of catastrophic illness. In the design profession, the vacuum has led to the advent of glorified contractors known as ‘construction managers’ (the CM). In filling the voids these interlopers have created more complexity leading to a much more litigious environment.

^[1]William Henry PhD is the Principal in Charge of RGA-Design, LLC a full service architectural and interior design firm that has served as the architect of record for over 1,000 projects across the State of Florida (Registration number AA0003523). He has lectured and written widely on the above topic. His most recent publication is ‘Return of the Master Builder’ available on Amazon Kindle e Books. Henry’s contact information is whenry@rga-design.com; (813-226-2220 Ext204) or visit the company web site at www.rga-design .com ^[2] or www.buildingdoctorfl.com ^[3].

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