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Robert P. Wise
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February 28, 2001

ARCHITECT-ENGINEERS' DUTY OF CARE
AND LIABILITY ISSUES

By:
Robert P. Wise
© 2001

A. The Design Professional's Standard of Care

1. The General Standard of Care Owed to the Owner

An architect or engineer, as a matter of Mississippi law, must, "exercise ordinary professional skill and diligence." Board of Trustees, Utica Junior College v. Lee Electric Co., 198 So. 2d 231, 234 (Miss. 1967). The benchmark of prudent professional conduct is the standard of care set by the profession itself. As a practical matter the standard of care is demonstrable in a court of law through the expert testimony of a respected member of the profession who would apply his understanding of the standard to the facts involved in a case to state in his opinion whether the standard was met or not. Needless to say, respected members of the design professions, testifying in their expert capacities, can and do disagree from case to case as to the level of conduct the standard requires. A Mississippi Federal Court, applying state law, has stated the standard in general terms as follows:

An architect is bound by the general standards applicable to practitioners of other professions.
[T]he professional engineer or architect, like other professionals, owes a special duty to his client to perform his services with 'that degree of knowledge, skill, 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 prudent architect would under the same or similar circumstances.'

Mayor & City Council of the City of Columbus, Mississippi v. Clark-Dietz and Associates-Engineers, Inc., 550 F. Supp. 610, 623-624 (N.D. Miss. 1982). Accord, Holmes v. Wink, No. 1999-CA-01590-COA (Miss. C.A. 1/16/2001); Magnolia Construction Co., Inc. v. Mississippi Gulf South Engineers, Inc., 518 So. 2d 1194, 1202 (Miss. 1988).

The design professional must exercise the due care expected by the profession at each stages of their work, e.g., in the preparation of drawings and specifications, overseeing the bidding process, approving shop drawings, equipment cut sheets, contractor payment requests, and the making of observations of the work to guard the owner against defects in the construction. One court described the architect-engineer's liability exposure for specification of inappropriate materials for his design as follows:

'It ill behooves a man professing professional skill to say I know nothing of an article which I am called upon to use in the practice of my profession.'

The Mayor and City Council of the City of Columbus v. Clark-Dietz and Associates-Engineers, Inc., 550 F. Supp. 610, 624 (N.D. Miss. 1982).

Whether the design professional has violated the standard of care is usually a jury question in which the conflicting testimony of experts is weighed. The Mississippi Court of appeals recently ruled that an engineer's alleged violation of the Southern Building Code was not negligence per se. Wink, No. 1999-CA-01590-COA (Miss. C.A. 1/16/2001). Negligence per se occurs where there has been a violation of a statute. Since the Code is not a legislative enactment, its violation is not considered automatic negligence. Rather the issue of negligence is to be left to the trier of fact, examining the standard of the profession.

2. The Owner Has No Action For Implied Warranty

The owner's proper causes of action against a design professional who has caused him damages are for negligence and breach of contract. The owner has no cause of action against the architect-engineer for implied warranty since the design professional, "does not imply or guarantee a perfect plan or satisfactory result, and he is liable only for failure to exercise reasonable care and skill." 5 Am. Jr. 2d Architects § 10 (1995). Accord., 6 C.J.S. Architects § 27 (1975); Gravely v. Providence Partnership, 549 F. 2d 958 (4th Cir. 1977). As one court put it, the design professional is "selling service and not insurance". Allied Properties v. John A. Blume & Associates, Engineers, 25 Cal. App. 3d 848, 102 Cal. Rptr. 259 (1972).

3. The Contract Termination Standard

The AIA Standard Form of Agreement Between Owner and Architect does not set forth the general standard of care, but does provide the owner the right to terminate the contract for cause on seven (7) days' written notice should the architect "fail substantially to perform" the contract. Section 1.3.8.4, B141-1997. However, the owner can only terminate the agreement for a major, material breach of an essential term of the agreement, usually one that would defeat the purpose of the contract. The owner has no right to terminate the architect's contract for "a slight deviation from the letter of the agreement". See e.g., Stein, Steven, 1 Construction Law ¶ 4.14[1] at 4-122.

4. The Standard of Care Owed to the Owner for Inspections

The AIA revised the owner-architect agreement in 1997, and in doing so created a new second part to the agreement, namely the Standard Form of Architect's Services: Design and Contract Administration. Like its predecessor AIA agreements, the new services agreement attempts to deal with the troublesome issue of an architect's potential liability for inspections of the contractor's work. The agreement attempts to strike a balance, ensuring that while the architect performs a duty to guard the owner against defects through periodic observations of the work, the architect does not take on the duties and liabilities of a resident construction supervisor. The Architect-Consultant Agreement, also revised in 1997, contains the same protections (AIA Document C141-1997). The Architect-Owner agreement at Section 2.6.2 provides:

2.6.2 EVALUATIONS OF THE WORK

2.6.2.1 The Architect, as a representative of the Owner, shall visit the site at intervals appropriate to the stage of the Contractor's operations, or as otherwise agreed by the Owner and the Architect in Article 2.8, (1) to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents.

2.6.2.2 The Architect shall report to the Owner known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor. However, the Architect shall not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect shall be responsible for the Architects's negligent acts or omissions, but shall not have control over or charge of and shall not be responsible for acts or omissions of the Contractor, Subcontractor, or their agents or employees, or any other persons or entities performing portions of the Work.

The Architect-Consultant agreement contains parallel language at Sections 4.5.3 and 4.5.4, AIA Document C141-1997.

One new feature of the 1997 agreements is that the architect and owner can agree up front and spell out under Section 2.8 of the contract just how many visits to the site the architect will be expected to make over the duration of the construction, and the number of inspections for substantial and final completion. An owner who agrees to the number of site visits and inspections up front may be hard pressed later on to claim that the designated number were too few.

It is clear, though, that the architect or engineer, while not a resident supervisor of construction, is responsible to make such observations as he does make prudently to guard the owner against defects. Further, the design professional will be held to a duty to make prudently any special inspections his agreement or specifications may call upon him to make.

For example, in Dickerson Construction Company, Inc. v. Process Engineering Company, Inc., 341 So. 2d 646 (Miss. 1977) the architects-engineers signed an agreement with the owner for design of a commercial building in Hinds County that would contain the owner's metal treatment and plating operations. The architect-owner agreement contained the usual AIA language limiting the duty for site visits to periodic visits sufficient to allow the architect-engineers to endeavor to guard the owner against deficiencies in the work. However, the architects-engineers also prepared specifications that went on to provide that they would be present to approve specific parts of the construction work, particularly the foundation work. Thus, the specs required the architect to approve the contractor's backfilling against foundation walls so the architect could make sure the fill was free of debris. The specs also required the architect to approve all splices used in concrete reinforcement, inspect all areas to receive concrete prior to pouring, and inspect all pipelines prior the pouring of the slab. Id., 342 So. 2d at 652.

Within six months of construction cracks began to appear in the building. Within the course of the first couple of years, according to the owner's experts, the building experienced great lateral movement, due to improper backfill which included debris and Yazoo clay. The building had as well significant upward movement due to the failure of the construction to include Jay voids beneath the grade beams as called for in the plans. Further, the contractor failed to construct drainage ditches or swells on the upper side of the building which allowed ponding of water against the building, raising the water table there. As a result, the building cracked and deteriorated to the point it became unusable by the owner. Id., 341 So. 2d at 648. The owner sued the architects-engineers together with the contractor and obtained a recovery against them jointly for an amount that was actually slightly more than the original cost of the now useless building. Id., 341 So. 2d at 647.

On appeal the architects-engineers argued that the trial court had wrongly instructed the jury that they had a duty to provide "supervision" of the construction when in fact their duty was limited to a "general inspection" by the AIA contract language. The Mississippi Supreme Court, though, refused to be drawn into such semantics, pointing out that the architects-engineers had agreed in their specifications specifically to be present to review the placing of backfill, and to inspect and approve the site before the pouring of concrete. The court noted that the instruction did not go so far as to recite a duty of "continuous on-site inspection or supervision" or imply that the architect-engineers guaranteed the contractor's work. Id., 341 So. 2d at 652. However, the architects-engineers did have a duty to use "reasonable care in making the observations or inspections that the proof showed they did make." Id.

Further, the Court stated that the architects-engineers had a duty to use reasonable care to see that the contractor's work was in "substantial compliance with the plans and specifications." (Emphasis added.) Id., 341 So. 2d at 652.

Needless to say, architects and engineers should be aware from a reading of the Dickerson case that in the event of a judicial review of a construction project, they will be held accountable for any failure to meet any specification implying the architects-engineers are to be present to oversee and approve a particular stage of the construction work. Also, if the contractor's work is approved but turns out not to be in substantial compliance with the plans and specifications, the architects-engineers have liability exposure, and will likely be expect in any subsequent judicial proceeding to come in and explain why the errors were not caught.

The architects and engineers will also be held responsible to prudently make any special inspections the owner may request of a portions of the contractor's work. The design professionals may also increase their exposure to claims if they agree to become responsible for inspections made by an on-site resident inspector.

For example, in U.R.S. Co., Inc. v. Gulfport-Biloxi Regional Airport Authority, 544 So. 2d 824 (Miss. 1989), the architect agreed for an additional fee to provide a full-time resident inspector to administer a contract for airport construction. During the construction of the airport terminal roof the owner became concerned after an independent roofing expert reported to him that there were problems with the roof installation. The owner requested that the architect's resident inspector make a special inspection of the roof. The resident inspector said he would do so. The architect's inspector later told the owner that he should not worry about the roof, that it would be fine. Following the substantial completion and occupation of the building by the airport authority, the terminal roof began to leak. All attempts to repair the leaks failed. The independent roofing expert was brought back in; he reported that the problems he found were precisely the same problems he had warned the owner about some years before, and that the architect's resident inspector should have caught them his special inspections of the roof that the owner had specifically requested that he make. At the end of the subsequent trial, the chancellor awarded the owner full damages against the architects, including amounts for replacement of the roof, on-site inspection fees of the independent roofing expert, and the cost of waterproofing halls in the building's interior.

The architects contended that the language of their contract, similar to the language of the AIA contracts, absolved them of any liability for the contractor's poor workmanship. However, the Mississippi Supreme Court noted that the architects had agreed to provide a full-time on-site representative as further protection to the owner, and that the inspector they provided failed to observe deficiencies in the installation of the roof even after agreeing to make special inspections of the roof, and even after being warned the construction of the roof was improper. Accordingly, the court held the architect, which had allowed the release of retainage, responsible in damages to the airport authority and its surety. A design professional can not fail to inspect for defects whose likely presence are explicitly called to his attention.

5. The Design Professional's Duty of Care is Non-Delegable

While a design professional can hire others to assist him, he can not delegate away his responsibility to see that the work he has taken on is carried out with due care. The Mississippi Supreme Court has stated:

The presumption is that, if an architect is licensed and registered, he has the capability of planning a building and supervising its construction in accordance with his plans. Consequently, if he undertakes a project, he alone will be held responsible therefor. If he delegates any part of his duties, he does so at his peril.

State Board of Registration v. Rogers, 239 Miss. 35, 120 So. 2d 772, 775 (1960).

Further, by statute the appearance of the unique stamp of a registered architect or engineer on a plan or specification signifies that the document has been prepared by the architect or engineer under his individual supervision. § 73-1-35 Miss. Code Ann. (2000) (architects); § 73-13-29 Miss. Code Ann. (2000) (engineers).

Therefore, the architect-engineer can not defend against the owner's claims by using the excuse that he was relying upon the information or work provided to him by an employee or consultant. The architect or engineer who has relied on a consulting specialist, though, may attempt to pass the liability down the line by invoking the indemnity clause of the consultant's contract with him. Nonetheless, from the perspective of the owner who hires him, the design professional's duty remains non-delegable. The Mayor and City Council of the City of Columbus v. Clark-Dietz and Associates-Engineers, Inc., 550 F. Supp. 610, 624 (N.D. Miss. 1982). Accord, U.R.S. Co., Inc. v. Gulfport-Biloxi Regional Airport Authority, 544 So. 2d 824, 827 (Miss. 1989).

6. The Applicable Standard of Care is a National One

The standard of care for a design professional is a national, not a local, standard of care. The Mississippi cases that discuss the standard of care analyze the standard of care in terms of the profession as a whole, and not in terms of a standard of just of local practitioners. See, e.g., The Mayor and City Council of the City of Columbus v. Clark-Dietz and Associates-Engineers, Inc., 550 F. Supp. 610, 623-24 (N.D. Miss. 1982). As a practical matter that means that the expert testifying for or against the architect's liability can be from a state and region other than the architect's local community.

7. The Design Professional's Liability to Contractors

Although the architect-engineer has no contract with the builders, a general contractor, subcontractor or their sureties can sue the architect-engineer if reliance on the architect-engineer's plans, specifications, inspections or approvals cause them to encounter the costs of delays or other economic harm. The design professional's common law duties to contractors and their sureties (who step into the contractor's shoes by subrogation) sound in tort. Magnolia Construction Co., Inc. v. Mississippi Gulf South Engineers, Inc., 518 So. 2d 1194, 1202 (Miss. 1988); The Mayor and City Council of the City of Columbus v. Clark-Dietz and Associates-Engineers, Inc., 550 F. Supp. 610, 624 (N.D. Miss. 1982); Owen v. Dodd, 431 F. Supp. 1239, 1242 (N.D. Miss. 1977).

In City of Columbus, supra., the City commissioned an architect-engineering firm to design a waste water treatment plant and protective levee in a low lying area. The center of the earthen levee contained a slurry wall. Pipes penetrated through the levee and its slurry wall, encased by concrete collars to prevent seepage. However, during a flood of the area water penetrated the levee along the exterior of the pipes, causing the slurry wall to collapse, inundating the site. 550 F. Supp. at 614.

Expert testimony presented at trial showed that the failure occurred because the concrete collars for the pipes passing through the levee had deformability characteristics entirely different from the slurry-bentonite wall they penetrated, permitting seepage paths to develop between the dissimilar materials. The court concluded that the architects-engineers did not have the experience with the materials they were using to properly evaluate their sufficiency, yet made decisions for their use without speaking with the specialists who were available to them. Further, the architects-engineers did not run tests to compute the strength of the slurry wall. The court concluded the design was not "reasonably prudent from an engineering standpoint." 550 F. Supp. at 617. The court further found that the architects-engineers bore ultimate responsibility to the contractor for any damages caused to them resulting from their supply of the defective design. 550 F. Supp. at 625.

In addition, the contractor in City of Columbus alleged that the architects-engineers should bear the responsibility for the contractor's poor workmanship and use of improper soil materials in the levee since they had tested the levee and approved the work. However, the court found that the language of the architects-engineers' contract limited their duty to oversee the construction, "to observe the general progress of the work, and not to make continuous and exhaustive inspections." 550 F. Supp. at 627. Further, it held that the architect-engineers, "performed this contractual duty by generally overseeing construction and conducting soil tests with reasonable care." Id. Moreover, the court declared:

The language in the [architects-engineers'] contract clearly does not create a requirement for [the architects-engineers] to inspect and verify every step of [the contractor's] work. In the absence of an active undertaking to guarantee the contractor's work, courts have ordinarily held that similar language absolves the architect of any liability for the contractor's poor workmanship. [Citations omitted]. Thus, we hold that [the architects-engineers] owed no duty of supervision to [the contractor] except to exercise reasonable care when it provided instructions and test results at the job site.

550 F. Supp. at 627. Therefore, just because the architects-engineers approve work of the contractor that later turns out to have been deficient does not automatically mean that the design professionals will share liability with the contractor, although it will likely place the architects-engineers in the position of having to explain that the observations and tests they did make did not catch the defects but were reasonable under the circumstances.

An architect-engineer along with the owner can incur liability also to the contractor if it handles the contractor's payment requests dishonestly, in bad faith. For example, in City of Mound Bayou v. Roy Collins Construction Co., Inc., 499 So. 2d 1354 (Miss. 1986), the contractor sued the Town of Mound Bayou and their consulting engineers because the engineers ignored the results of their own audit of the contractor's work which would have supported the contractor's pay requests, altered pay requests without proof that the contractors had not done the work specified, and refused provide an on-site engineer to check the progress of the contractor after a point. Id. at 1360.

8. Conclusion

The design professional's standard of care can be stated only in the most general of terms. The real test is the application of the general standard, informed by the language of the designer's contract, to the facts of the case at hand as stated through the testimony of an expert witness knowledgeable in the field. Experts may well disagree as to what the design professions demand of reasonable practitioners under varying circumstances. The resolution of construction law liability issues, therefore, is often a fact intensive endeavor, and one more prone to rest in the end with determiners of fact, like juries or arbitrators, rather than with judges using the short hand legal means of the summary judgment process. All this means is that one should attempt to resolve professional liability issues as quickly as possible through negotiation if it can be done before such fact intensive litigation turns into a burdensome combination of time and money for all concerned.