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What Is a Design Professional’s Standard of Care?

What Is a Design Professional’s Standard of Care?

Harry Malka, Esquire

In The School Board Of Broward County vs. Pierce Goodwin Alexander & Linville, No. 4D11-4808 (Fla. 4 th DCA, 2014), the School Board of Broward County entered into a contract with an Architectural firm (“the Architect”) to perform design services for the renovation of a high school. During the preliminary design phase, in which the plans were being developed for bidding by contractors, the Architect and the School Board’s peer reviewer disagreed over a portion of the initial design plans. Specifically, the peer reviewer thought that a third floor balcony on one of the buildings required construction of a staircase as an emergency exit in case of a fire. The Architect disagreed and suggested an alternative solution to meet the fire code standards that did not require the construction of a staircase.

After the start of construction, the School Board’s Chief Building Official determined the design plans were not code-compliant and that a staircase was required for the third floor balcony. According to the contract, the Chief Building Official had the final authority to determine the correct interpretation of all applicable building codes, statutes, and regulations. That decision resulted in the redrafting of plans by the Architect and the implementation of a very costly Change Order Item (“COI 51”). It also resulted in the school board paying more for the renovation because the General Contractor’s bid did not contemplate the construction of a staircase, and the initial construction had to be reworked.

After completion of the construction project, the School Board sued the Architect, contending that numerous “Change Order Items” (“COIs”) were a breach of the contract to provide design services. The School Board contended that the COIs were generated due to changes in the initial design plans caused by the Architect’s failure to meet building code requirements after construction commenced.

As to COI 51, the School Board’s claim was that the Architect did not provide initial design plans for bidding by contractors that were code-compliant. The central issue between the parties relating to this part of the lawsuit was a dispute over which “standard of care” was applicable. On one hand, the School Board contended that the standard of care was whether the initial plans were code-compliant, as required by the contract (i.e. a Breach of Contract standard). On the other hand, the Architect contended that the applicable standard of care was whether it performed its duties with ordinary and reasonable skill (i.e. a Negligence standard).

The trial court interpreted the contract to limit damages to those arising from “negligent performance.” As a result, the trial court ruled that the Negligence standard applied. At trial, the jury was instructed to decide liability based on the Negligence standard, as requested by the Architect, rather than on a Breach of Contract standard, as requested by the School Board. At the conclusion of the trial, the jury found in favor of the Architect, determining that the Architect performed its duties with ordinary and reasonable skill.

The School Board appealed, arguing that the trial applied the wrong standard. The School Board contended on appeal that the trial court imposed a higher standard of care than the standard imposed by the contract. The Architect argued on appeal that the law does not require Architects to perform their services with perfection. The Architect contended that the design plans were prepared with ordinary and reasonable skill in accordance with the standard of care applicable to Architects.

The Court of Appeals agreed that, under the common law, “the Architect’s undertaking does not imply or guarantee a perfect plan. … So long as the Architect uses the ordinary and reasonable skill other Architects in the community use to draft plans that are code-compliant, the common law standard of care is met.” However, in the case where an express provision within the contract provides for a heightened standard of care, the professional must perform in accordance with the terms of the contract. In other words, an Architect can contractually commit to perform under a standard of care higher than the common law standard.

After an analysis of the contract between the School Board and the Architect, the Court of Appeals concluded that, pursuant to the contract, the Architect assumed the risk for costs and expenses attributable to design plans that were not code-compliant. The Court concluded that the contract required more from the Architect than “merely requiring plans prepared with ordinary and reasonable skill services.”

This case once again shows that a contract can impose more liability on a party than the liability imposed by law. It is quite conceivable that, at the time it entered into the Contract, the Architect was not aware, or did not fully understand, that it had entered into an agreement that imposed more liability than the common law of negligence.

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