Executive Summary & Introduction

The “standard of care” [3] is the prevailing benchmark of professional practice in architecture and design. For decades, it has been the threshold of protection under professional liability insurance for architects. For centuries dating back to the 1800s in the United States, and even longer for traditional English common law, it has been the legal criterion for professional liability in claims and lawsuits against architects. Most recently in 2007, the “standard of care” was officially incorporated into the AIA contract documents as the contractual “benchmark” for professional performance and compliance. Through Section 2.2 of the B101 (2007), the AIA now formally adopts the prevailing standard for architectural performance to provide:

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. [4]

Absent some extraordinary circumstance or commitment, this “standard of care” which guides and governs professional architecture and corresponding litigation exposure is drawn from an external perspective which makes internal or individual potential and capacity secondary (or even irrelevant) considerations for accountability. The design professional’s standard of care is generally based on the performance of others characterized as the “reasonable”, “ordinary”, or “average” design professional, and not on internal or personal capabilities. As a result, the ultimate legal question is generally not, “What are you capable of?”, but rather, “What would others do?” (“WWOD?”)

The external performance focus works well where the project and related tasks utilize time-tested industry standards with a substantial history of application, success, and failure by others. However, what happens when there is no history? What happens when almost no one has undertaken the contemplated action before? What happens when the proposed product, process or criterion has no historical application for validation? Under those circumstances, is there even a “standard”? Certainly, it is difficult to find a comparative “ordinary” performance for evaluation. Such is the challenge of architectural practitioners and leaders and the affiliated and interested communities, such as professional liability insurers, in the current age of rapid innovation and evolution.

We live in an age of ever-accelerating change and “advancement”. Computer technology, bio-sciences, information systems, communication systems, manufacturing, and so much more become more powerful and diverse every day. We also live in an era where the design and construction industry is often at the focal point of shifting political and social imperatives for sustainability and universal technology. For society at large, these advances are almost universally regarded as positive steps toward a better tomorrow. For design professionals in the construction industry, the escalation of advancement presents a mixed blessing. On the one hand, technological advancement provides the lure and expectation of increased opportunities and efficiencies, as well as better ways of designing and building projects. However, those new (and, by definition, unproven) technologies, products, and approaches also present an increased potential for failure and disappointment. All too often, “disappointed” clients blame the design professional.

On the opposite side of the spectrum, design professionals also face increasing limitations on their design options or, at the very least, shifting objectives. We now have a much better understanding of how past innovation ultimately interacts with our environment, such that many preferred options of the past (e.g., asbestos) are no longer available to the industry. The increasing tension between available resources and demand has driven the construction industry toward “green” and “sustainable” design, with all of the inherent limitations on those objectives. As a result of these dual forces, the design professional’s options for tried-and-true materials, products, and processes are now often limited or relegated behind other prevailing objectives such as sustainability, energy consumption, and social/political agendas.

The latest round of AIA contract documents aptly demonstrates the expanding array of variations confronting architects today. Despite the progress exemplified by the inclusion of this simple standard of care provision, the AIA B101 included other provisions which referenced, but did not solve, the innovative evolutions within the design and construction industry. Specifically, the B101 references, but does not resolve, issues associated with “environmentally responsible design approaches” [5], “performance of equipment or systems” [6], “building information modeling” [7], “extensive environmentally responsible design” [8], “LEED Certification” [9], and “digital data for transmission to the Owner’s consultants and contractors, or to other Owner-authorized recipients.” [10] In doing so, the AIA intentionally (or accidentally) illustrated the dichotomy of a design industry measuring itself by references to “historic” and “ordinary”, while at the same time embracing and pursuing innovative products, processes, and performance standards which are decidedly neither historic nor ordinary. Where these revolutionary and innovative products, processes, and performance criteria are part of a project, the standard of care must necessarily exist and be definable, but it is not “business as usual”.

These “opportunities of innovation” (sometimes better characterized as “crises of necessity”) put design professionals in an extremely difficult position. Modern day design professionals are constantly expected to find new ways of building projects better, faster, cheaper and greener, while at the same time they are too often viewed as professionally and financially responsible if those new methodologies and materials do not succeed to the full extent of their hoped-for results. Where the claim does come from a disgruntled client who is dissatisfied with the results of the innovation, the client will necessarily allege a failure to meet the standard of care. However, what is that standard where there is no precedent, no clear standard for “WWOD?” with the innovation or requirement in question?

For architects, their colleagues in engineering and affiliated design fields, and the supporting industries of professional liability insurance, these challenges are currently manifested under two broad categories:

  1. Criteria & Objectives. With expanding options in products, technology, and non-traditional objectives, the range of potential project objectives and architectural priorities has expanded geometrically. There is no longer a single or predominant architectural delivery model. Too often, such variations are not even recognized, much less clarified and confirmed. Absent such defined selections among the competing options, what is the “standard” for performance?
  2. Uncharted Performance. By definition, innovative products and technology and new project objectives and standards (such as technology) lack a tested and proven history for performance, outcomes, and success. Experience clearly shows that not all will succeed and that there will be further evolution into the future. The challenge for architects is to define their current-day obligations for incorporation or validation of the “innovation”, and their “responsibility” for the success of those innovations into the future.

This paper seeks to analyze and provide a framework to analyze these questions, provide practice management tools to manage the communications, performance, and related risks proactively and, finally, to establish a methodology of defense of claims associated with real or perceived “failures.” In doing so, innovation will be evaluated in three distinct categories. These categories intentionally build on one another, with each successive category incorporating portions of its predecessor:

  • Products: Innovative or evolutionary products, materials, or systems incorporated into construction of the project.
  • Processes: Technology has now provided a great array of tools and processes which claim to provide the platform for a superior design product. Historically, these have involved issues such as CADD and project extranets. Today, the greatest challenge and allure for design professionals and their clients is Building Information Modeling (“BIM”).
  • Performance: While performance has always been a possible standard for design, it has now become much more widely so and with far different parameters through the pervasive focus on and requirement of sustainable design.

Nearly every innovation or evolution confronting design professionals today falls into one or more of these categories. When faced with that challenge, design professionals cannot simply adopt the “industry standard” of common practice. Instead, it must define the boundaries of their commitments consistent with their capacity to fulfill those commitments. This is the standard of care in uncharted areas.