In a recent article we discussed the potential implications of the rapidly changing climate landscape on the standard of care for design professionals. What exactly is the standard of care and why does it always appear to be evolving?
What is the standard of care?
At its core, the standard of care is a requirement to act with reasonable care. Failure to exercise reasonable care is called negligence and you can be held liable for the damages caused by that negligence. This standard applies to everyone irrespective of their professions and is the reason you can be held liable for the damages caused by throwing a bowling ball off a 5th floor balcony or for yelling “fire” in a crowded movie theater.
In your capacity as a design professional, however, you’re also held to a professional standard of care, which requires you to act with reasonable skill and care when providing your services. Though the exact language and definition may vary by state, the professional standard of care is generally defined as “the professional skill and care ordinarily provided by [design professionals] practicing in the same or similar locality under the same or similar circumstances.” What this means is that you’re expected to maintain and exercise the knowledge, skill, and care of a reasonably prudent design professional in the same or similar circumstances.
Does the standard of care require perfection?
It’s important to note that this standard doesn’t require perfect performance. To quote from Gagne v. Bertran, a pivotal case on the standard of care for professionals:
The services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for negligence. Those who hire such persons are not justified in expecting infallibility, but can expect only reasonable care and competence. They purchase service, not insurance. [emphasis added]
Thus, in the same way that a surgeon is not expected to perform flawlessly in every surgical procedure, and an attorney is not expected to deliver a winning verdict for every client, you are not expected to deliver a perfect project or design. As the court in City of Mounds View v. Walijarvi, another well-established case on the topic of the standard of care, so eloquently explained:
Architects, doctors, engineers, attorneys, and others deal in somewhat inexact sciences and are continually called upon to exercise their skilled judgment in order to anticipate and provide for random factors which are incapable of precise measurement. The indeterminate nature of these factors makes it impossible for professional service people to gauge them with complete accuracy in every instance…Because of the inescapable possibility of error which inheres in these services, the law has traditionally required, not perfect results, but rather the exercise of that skill and judgment which can be reasonably expected from similarly situated professionals. [emphasis added]
There are myriad reasons a claim can arise that have nothing to do with your negligence. Perhaps you fail to deliver a design within your client’s budget because a global pandemic occurs, wreaking havoc on supply chains and costs. Or perhaps you fail to deliver a design that conforms with all laws and regulations because the laws changed or there’s a new interpretation of existing law that is released after you’ve rendered your services. The standard of care protects you and your firm from liability in these instances, provided you (1) acted with reasonable skill and care and (2) didn’t assume a higher standard of care via your actions or contracts.
What is the impact of contract language on your standard of care?
One area which design professionals have the greatest control in defining the applicable standard of care is thru their contract language. From a risk management perspective, proper and precise contract language can be a powerful tool in defending against claims. Corinne Thompson v. Christie Gordon is a prime example, demonstrating how a single word can significantly alter your standard of care on a project, and therefore your liability, in the event of a claim.
In Thompson v. Gordon, design professionals are retained to provide engineering services for a roadway in connection with a shopping mall development project. Six or seven years after the completion of the project, Christie Gordon is driving on the road when she swerves to avoid another vehicle and loses control. This causes Gordon to hit the median separating the eastbound and westbound traffic, vault into the air, and land on top of the Thompson’s vehicle, which was traveling in the opposite direction. The plaintiff, Corinne Thompson, was seriously injured while her husband and daughter were killed. The plaintiff filed a claim, in part, alleging that the design professionals were negligent for failing to consider and design an improved median barrier, such as a jersey barrier, which could have reduced the likelihood of or wholly prevented Gordon’s vehicle from crossing over into oncoming traffic and colliding with the plaintiff’s vehicle.
In reaching their decision, the Illinois Supreme Court looked to the contract language for this project. They noted the specific use of “improvement” to describe the design professional’s services on the ramp portion of the roadway project and contrasted it against the design professional’s use of “replacement” to describe their services on the bridge deck portion of the roadway project—the latter pertained to the services at issue in the case before the court.
The court also looked at the standard of care as it was defined in the contract for the design professional’s services on the project. It read, in relevant part, as follows: “The standard of care applicable to ENGINEER’s services will be the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services.”
Reading this language together, the court concluded that, “[p]ursuant to the plain language of the contract then, the standard of care was limited to the degree of skill and diligence normally employed by professional engineers performing the same or similar services, namely, replacing the bridge deck” [emphasis added].
Because the scope of the design professional’s duty was defined by the contract between the design professional and their client, and because the plain language of that contract required the defendant to replace the bridge deck, the design professional owed no duty to the plaintiffs to consider or design an improved median barrier. Accordingly, the Illinois Supreme Court upheld the trial court’s grant of summary judgment in favor of the design professional.
So, what lessons can design professionals glean from Corinne Thompson v. Christie Gordon? Proper contract language matters and can be an essential and powerful tool in defending against claims. Just imagine how different the outcome for the design professionals in this case could have been if they had used the word “improvement” instead of “replacement” to describe their services on the bridge deck. The modification of this one word would have changed the applicable standard of care from: “the degree of skill and care normally employed by professional engineers replacing a bridge deck” to “the degree of skill and care normally employed by professional engineers improving a bridge deck.” Under the latter standard, it is much easier for a plaintiff to prevail on a claim that design professionals owed a duty to consider and design an improved median barrier.
Other words that can significantly alter your standard of care on a project, and therefore your liability, in the event of a claim include, but are not limited to, “highest,” “best,” and “first-class,” which mean a promise to perform according to the “highest standards in the profession” or “best professional standards.” From a risk management perspective, obligating yourself to a higher standard via this type of language not only increases your exposure, but it can also create an uninsured exposure for you and your firm per the exclusion for contractually assumed liabilities that exist in professional liability insurance policies.
To learn more about how to keep the standard of care from being inadvertently elevated thru your contract language and minimize the risk of uninsured exposures, see the excerpt from Managing Risk Through Contract Language, our in-depth contract review publication only available to policyholders.