Appendix B: TORT LAW
Negligence is a tort. A tort is a civil wrong, as opposed to a criminal wrong. Some violations can be both. There are four elements and for an architect to be legally liable, all four elements must be proven. These elements are:
- Existence of a duty. The scope of services in the owner-architect agreement is the first place to look for the scope of duty owed.
- Substandard performance in response to that duty (generally, the professional standard of care). This is proven by expert testimony. What would the reasonably competent architect have done under the same circumstances? This does not require perfection. Although the standard of care may be considered as a “stand alone” concept, it is only one element of the tort of negligence.
- Damages; and
- Proof that the substandard performance was the actual and legal (proximate) cause of the damages. BUT FOR the negligence, the damages would not have occurred.
Architects are typically judged by the professional standard of care. Contractors are judged on a breach of contract standard. It is possible that an owner can have a construction problem for which neither the architect nor the contractor is liable.
Generally, speaking, compensatory damages (to compensate for the loss) are awarded as a result of negligence. However, consequential damages (for costs resulting indirectly from the negligent acts or omissions) and punitive damages (to punish past wrongful behavior and to deter such behavior in the future) may be awarded by a court.
Intentional Torts may include:
- Intentional misrepresentation
- Defamation: If written: libel. If spoken: slander.
- Interference with Contractual and Business Relationships
- Strict Liability (i.e., liability without fault.) This generally applies only to abnormally dangerous or hazardous activities.
Vicarious Liability occurs when one person or entity is held legally responsible for the acts or omissions of another person or entity because of the relationship between them (like employer/employee).
The party held responsible may be entitled to indemnity from the other party (indemnity is the right to be held harmless).
Joint and Several Liability
When two or more individuals or entities act in concert to injure another, or they act independently, but their actions cause a single, indivisible injury, they are "joint tortfeasors." The injured party is entitled to recover the full amount of its damages from either or both joint tortfeasors, in any ratio, up to the total amount due. If one joint tortfeasor pays more than its fair share of the damages, it may be entitled to contribution from the other joint tortfeasor(s).