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Architects should be mindful of liabilityBy Lisa Goldman
The law requires an architect to exercise the standard of professional care ordinarily exercised by members of that profession. Independent of any contract an architect must exercise his or her duties with an "awareness and responsibility to the public welfare." In the building industry, claims against architects for improperly performed work or design defects can be based on negligence or contract law. A contract claim results when architects do not do something they were obligated to do by contract. In negligence cases, Wisconsin courts have historically held architects liable for personal injuries and/or property damage caused by defects in the design of a structure itself when they have failed to exercise reasonable professional care. Moreover, as the construction industry moves toward a model of shared design responsibility, more negligent design liability issues involving architects will inevitably arise. A well-drafted contract, in many instances, can eliminate some potential lawsuits for negligence or breach of contract. For example, architects can and do routinely use contracts to avoid liability for injuries sustained on the worksite by relinquishing control over the manner, methods, and means of completing the project. The American Institute of Architects supplies a variety of contracts and supplemental forms to help define the rights and responsibilities of the architect, owner, and contractor. Although this basic rule of relinquishing control over the manner of completion of the project is well understood and followed by industry players, it can get murky when an architect over-reaches and supervises construction. This may occur simply because an architect is trying to be conscientious with complicated design issues and inadvertently over-supervises the assembly or construction. An architect may become legally responsible for injuries on the worksite because the architect has assumed control over the worksite and over the manner of completing the project, despite his contract. Alternatively, a comprehensive contract paying particular attention to the responsibility for the modification of pre-manufactured products or the work of specialty designers will not necessarily absolve an architect of liability for a faulty design but will assist a court in allocating liability should litigation ensue. In these projects the lead architect should be mindful that his or her contract clearly states the scope of the lead architect's responsibility for specialty design services performed by others. A safe approach might be to insist on indemnification for specialty design work completed by a third party. The architect may also want the contract to specify whether the architect will play a role in choosing a specialty designer or in reviewing specialty designs for errors. Because an architect's role requires him or her to coordinate specialty designs with other components ultimately affecting the overall safety of a project, an architect should keep an eye on what insurance will cover in the event of property damage or injury. In some instances additional coverage or insistence on coverage for another actor might be wise. Ultimately, architects are required to exercise the standard of professional care ordinarily exercised by members of that profession with an "awareness and responsibility to the public welfare." Lawsuits based on negligence for design defects or on contract law will rest, to some degree, on an architect's performance according to this basic standard of care and the specific terms of the contract. Proper communication between all the appropriate parties regarding liability for each element of a project before a project begins will help stem litigation or direct it toward the appropriate actor in the event it occurs. Lisa Goldman is an attorney at Lawton & Cates, S.C. She focuses her practice on civil and criminal litigation. madison.com ©2009 Capital Newspapers. All rights reserved. |
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