Whether you are building a private residence, an apartment complex, an office high-rise, a retail or industrial complex, or any other type of construction project, choosing your architect is one of the most important choices you must make. (S)he will be responsible not only for the design of your building(s), but also its or their construction and successful completion.
No matter how skilled, experienced, competent and innovative your architect is, however, mistakes and mishaps occur on virtually every project. Whether or not those mistakes rise to the level of professional malpractice, however, depends on a variety of factors. No architect is required to produce a “perfect” building that meets all of your esthetic and practical desires. Rather, (s)he must produce one that is fit for its intended purpose(s). This includes the following:
- Providing design and construction plans
- Giving you correct, proper and adequate advice
- Obtaining all requisite licenses and permits
- Adequately supervising the project
- Coordinating with the general contractor and subcontractors
- Using suitable materials
- Adhering to all applicable federal, state and local laws, rules and regulations
- Adhering to all applicable worker health and safety standards
- Bringing the project in on budget or obtaining the requisite authorization for budget overruns
Consequences of Architectural Negligence
If your architect turns out to be incompetent and/or negligent in the performance of his or her duties, you face significant financial loss. You could lose much if not all of the money you invested in the project. The building(s) could be unfit not only for its or their intended purposes, but for any reasonable purpose. In a worst-case scenario, the city could even raze them and hold you liable for the cost of demolishment.
Should you decide to sue your architect to recover your losses, you have two basic theory choices: breach of contract and negligence. Often plaintiffs choose to combine these two theories into one comprehensive lawsuit.
To prevail under a contract theory, you must prove the following four things:
- That you and your architect had a valid, enforceable contract
- That you performed or tendered performance of your contract duties
- That (s)he breached her contract duties
- That the breach caused you to suffer financial loss
If one of your claims is that the building contains a design defect, however, you must do more than merely prove that such a defect exists. Due to the fact that architectural services include professional judgment, science and art, all of which are subjective in nature, you also must prove that your architect did not exercise the “normal” judgment, skill and ability exhibited by similarly situated architects in the same area of the country when building the same type of structure(s). In other words, while you cannot hold your architect liable for a completely defect-free design, you can hold him or her liable for not exercising reasonable and ordinary professional care in his or her plans and specifications.
To prevail under a negligence theory, you must prove the following three things:
- That your architect owed you a duty
- That (s)he breached that duty
- That the breach was the proximate cause of your financial loss
Again the standard of care comes into play, as does the type of damages you suffered. Architects usually carry two types of insurance coverage, general liability and professional negligence, a/k/a malpractice coverage, and the appropriate insurance company must defend them in a lawsuit.
For example, if your damages arose because of someone’s injury in or near the building, your architect’s general liability insurance policy should cover this. On the other hand, if your damages arose because your architect negligently failed to properly perform his or her professional duties, his or malpractice insurance policy should cover this.
If you need an experienced malpractice litigator for architectural malpractice or if you are an attorney who needs outside malpractice litigation help, please call me toll-free at 833-FOR-DUBI (833-367-3824).