AHPP Chapter 5 - Architects and the Law Flashcards
What are the two categories of legal disputes for architects?
Party Disputes (delays, failures, fees) Administrative Proceedings (licensing, regulations)
What are the two most common alleged claims against architects?
Negligence
Breach of contract
What must be proven in order to claim Negligence against an architect?
- Duty. The arch must owe a legal duty to the person making the claim.
- Breach. The arch fails to perform the duty or does something that should not have been done.
- Cause. The arch’s breach of duty is the proximate cause of harm to the person making the claim.
- Damage. Actual harm or damage must have resulted from the breach.
What is the architects “Standard of Care”
What a reasonably prudent architect would do in the same general locale, in the same time frame, given the same or similar facts and circumstances.
This definition is established because it is often impossible for a layperson to otherwise determine the negligence of an architect when it is claimed.
Why should an architect be wary of elevated language in an owners’ contract?
Ex. using language like “best practices” or “highest prevailing standards” attempting to elevate the standard of care.
1) It may lead to a great deal of subjectivity and debate if a conflict ever arises.
2) such standards may not be insurable under many typical professional errors and omissions policies.
What are some ways the architect can consciously or inadvertently raise the Standard of Care?
- Promising a certain result (roof will not leak)
- Taking on the contractors responsibilities (dictating means & methods)
- Promising a specific supplier performance result (ex. materials delivered by a certain date)
If an architect was found guilty of negligence in a bad staircase design that did not meet code, what damages would the architect likely be held liable for in this scenario?
- The cost to remove the stairs and installing another set.
What terms are absolutely essential to any architect/owner agreement?
- The Project Scope
- The Project Time Frame
- Project Fees
What is a Limitations of Liability Clause in a contract?
Limit claims by the owner against the architect to a certain amount (ex. a set dollar limit or the balance of the remaining insurance policy) should a dispute arise.
What are Consequential Damages?
Not direct damages (replacing the bad stairs) but arise as a consequence of some act or omission. (Can’t open the building due to delay from replacing the stairs)
What is an Indemnification clause?
(The owner will not pay anything when it’s the architect’s fault)
A provision in the contract that the architect reimburse the owner for damages caused by the architect’s acts and/or omissions. (May not be insurable, so watch out for these)
What is a change order?
The proper documentation of any changes in project scope/time frame/fees, should be signed by both parties, and can be used during disputes as evidence.
What is a concern with Contractor-Led Design-Build?
The usual checks and balances between architect and contractor are not there and the architect may have to perform work that they do not agree with.
Who is liable for damages in a case against a Joint Venture?
It depends on the contracts! Could be both parties liable for an error from one, or just one party liable.
What are Third-Party actions?
Liability for negligent acts, errors or omissions that injure or damage third parties with whom the architect has no contractual relationship (construction workers, passersby, occupants/users, etc.)
What is the usual Statute of Limitations for a case against a design professional?
3-10 years (depending on the state) from the date of a project completion.
What are Statutes of Repose?
Similar to Statutes of Limitation, but the time frame starts when the complaint is discovered, not when the project is completed.
Typically shorter than SoL
What is Betterment?
A concept that essentially stops the owner from getting things for free in the case of an architect’s error or omission.
For example, if an architect forgets to place a carpet in the drawings and the owner needs the carpet to open the building… the architect will be liable for any fees associated, but not the price of the carpet.
What is a big risk of allowing the owner to fall significantly behind in payments?
At the end of the project, it is possible that the cost of Collection Actions (litigation) over unpaid fees could be more than the remaining fee. Therefore, it doesn’t make financial sense for the architect to sue to get the unpaid amount.
What are the two most important things an architect can do to avoid legal claims?
- Having the proper contracts in place
- Proper communication with the client
What is probably the most essential element of communication in our industry?
Project Documentation!
- Provides a written record of contractual relationships
- Provides a written record of the scope of work
- Raises the level of understanding between parties
- Provides a chronology of the events of a project
- Provides a consolidated record if the parties have to revisit the project at a later date
What are some examples of Project Documents?
- Drawings & Specifications
- Shop Drawings
- Submittals
- Change Orders
- Sketches
- RFI’s
What kind of documentation should be included from the beginning of each project to help with future claims?
- Diary/Notebook/Site Observation Reports (Write in ink if by hand, use spiral notebook, date pages)
- Electronic Notes
- Photographs/Videos
- Correspondence
- Status letters updating your client on a regular basis.
- “Issues” letters flagging potential problems.
- Meeting minutes
- Memos of phone conversations
- Project scheduling information
- Change order logs
- Shop drawings logs
- Progress payment logs
- Payroll records
- Equipment use records
- Accounting records/cost reports
- Estimates
- Bids
- Material invoice files
- Claim reports
What is the difference between ownership of drawings and copyright on drawings?
Think of it like a book… you can buy a book and do whatever you want with it, but you do not own the copyright so you cannot reproduce and sell the book.
