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Introduction

A design professional, such as an architect or engineer, becomes obligated to render professional services only by his or her promise. The promise is normally defined and the terms and conditions provided in a written agreement between the design professional and the client. Some claims can be brought as contract claims, while others may be brought as both contract and negligence claims. Claims may arise during both the design and construction phases of a project.

In Florida, recent court decisions have greatly expanded the ability of an aggrieved party to seek redress against an architect or engineer even in the absence of a direct contract between the aggrieved party and the professional. An experienced construction law attorney can guide you in preparing a claim or defense in a professional malpractice action.

Architectural Malpractice Claims

Architects and engineers are design professionals and are generally subject to a professional standard of care in liability actions similar to that imposed on doctors, lawyers and other professionals. This standard requires them to provide professional services within their area of expertise by exercising the same care, skill and diligence as a person in that profession would ordinarily exercise under similar circumstances. Thus, an architect or engineer can be held liable where he fails to exercise such care, skill and diligence as would the ordinary architect or engineer under like circumstances and in a similar time frame. Unless the design professional's contract for services addresses the standard of care, the standard is the same for both contract and tort liability.

Actions against design professionals have been brought as both breach of contract actions and also as negligence actions in tort. If breach of contract is alleged, the standard of care noted above is usually considered an implied part of the contract. If the action is brought in negligence, the standard of care is considered the duty that the architect owes to his or her client under general principles of tort law.

One of the most significant developments in the area of design professional liability in recent years has been the erosion of the privity barrier that previously existed between the design professional and third parties. The "privity barrier" relates to the requirement that the parties to an action or dispute have entered into a contract or agreement with each other. In the past, design professionals have been successful in arguing that they were not liable in negligence to a third party because there was no duty owed to the third party absent a contract. More recently, however, courts have been deciding that the reasonable skill and judgment expected of professionals must be rendered to those who foreseeably rely upon their services. This loosening of the privity restriction is occurring in jurisdictions across the United.

In general, the duty owed by an architect or engineer for the safety of contractors and subcontractors on the job site may arise from contract or be assumed by actions outside the contract. All contracts generated by design professional organizations exclude responsibility for site safety. Further, when looking at the architect's and engineer's contracts, courts also give weight to provisions of the owner/contractor agreement that make the contractor solely responsible for and in control of construction means, methods, techniques, sequences and procedures, and for safety programs in conjunction with the work.

When conducting site observations, the designer's responsibility can be summed up very simply: the designer is on site to further assure that the owner is getting what it is paying for. In the event that the designer observes that the owner is not getting what it is paying for, then the designer assists the owner in making a decision to enforce the owner's rights under the owner's agreement with the contractor. The design professional does not have to enforce the owner's rights on the owner's behalf. Under most standard form contracts and general conditions, the architect has the ability and responsibility to reject work. Only the owner has the right to stop work.

Standard-form contracts and common industry practice anticipate that the design professional may engage consultants to perform certain aspects of his or her design services. Delegation of duty, however, does not necessarily result in an abandonment of duty. Architects and engineers may be held liable for the negligence of their hired consultants. For example, design professionals have been held liable on the ground that their consultants are their agents. Alternatively, a design professional's hired consultant may be seen as an independent contractor. The general rule of law is that one is liable for the negligent acts of an agent, but not for those of an independent contractor or its employees. There are, of course, several exceptions, as where the design professional negligently hires an incompetent contractor, where the design professional retains control over the work product of the independent contractor, the activity engaged in is inherently dangerous, the independent contractor is financially incapable of paying the damages claimed or has inadequate or no insurance to cover the damages, and where the independent contractor is performing a nondelegable duty of the employer.

Architects and engineers do not design every detail of a project. The construction industry relies heavily on "shop drawings," or elaborations on the design contract documents prepared by the contractors who perform the actual construction. When problems arise with shop drawings, the owner, the general contractor and the architect/engineer may all have some liability. Owners may be liable for the acts of their employees and agents (e.g., architects and engineers) where a contractor relies on the employee's or agent's approval of shop drawings. The general contractor may also bear responsibility in some circumstances. And, while approval alone will not necessarily subject the architect/engineer to liability, approval combined with some inconsistency with the contract documents probably will.

Architectural Malpractice Claims in Florida

In Florida, for many years, the Economics Loss Rule (ELR) effectively claimants, not in privity with the architect, from suing the architect for erroneous or ambiguous drawings causing only economic damages. A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla. 1973). The landscape in Florida suddenly changed, however, following the Supreme Court decision in Moransais v. Heathman, 744 So.2d 973 (Fla. 1999), which held that the ELR does not bar a cause of action against a professional for his or her negligence even though the damages are purely economic and the aggrieved party entered into a contract with the professional's employer. The court further held that Florida recognizes a cause of action against professionals in negligence despite the lack of a direct contract between the professional and the aggrieved party.

Conclusion

During both the design and construction phases, a design professional may be held liable for any number of acts or omissions. Liability may be to the owner of the project, the contractor, or to a third party harmed by an act or omission. Issues of general law, statutory law and common industry practice all influence how liability will be assessed, and against which parties it will be assessed. An experienced construction law attorney can guide you in putting together a claim or defense in an architectural malpractice action.

Following the ground-breaking decision in Moransais, architectural firms are clearly at increased risk for damages caused by inadequate plans or specifications. Recently, in Comptech Int'l, Inc. v. Milam Commerce Park, Ltd., 753 So.2d 1219 (1999), the Supreme Court of Florida held that Florida's judicially created Economic Loss Rule does not eliminate a statutory cause of action (in this case based on the failure of a landlord to obtain required building permits for a building addition).

Further Questions

Our firm would be pleased to answer and further questions you may have regarding this or a related topic.