Do You Care AnyMore?

A Primer on “Standard of Care” for Design Professionals

by Bill Thomas

And I really ain’t bothered what you think of me

‘Cause all I want of you is just to let me be

I don’t care anymore

– Phil Collins “I Don’t Care Anymore

The very first cassette tape I bought with my own money was Genesis, “Genesis,” released in October 1983. I bought albums and 45s before, but this new media changed the game. It meant I had musical autonomy. While my parents listened to the “Urban Cowboy” soundtrack or Elvis (unfortunately not Costello) in the car, I could pop something in my Sony Walkman and tune out that noise. I didn’t care anymore what they said, or listened to. When I started driving my Grandmother’s hand-me-down 1972 Dodge Dart the next year, the first thing I did was install a cassette deck, replacing the stock AM radio. The deck and speakers cost more than the car. While it was not “perfection,” I got by with that “level of performance,” even though my friends had cooler, faster, flashier cars. And my air drumming on the above Collins track was spot on.

I know we all got “better things to do with our time,” so before you don’t care anymore, allow me to turn to the point of this article: Care. Of course design professionals care about their good works. That care permeates everything they do. But, no matter how much they care, let’s face it, things happen that prevents the outcomes hoped for. It is not realistic, even in this day and age of high-tech, for clients to expect perfection. When design professionals are judged at the end of the job, the test used to determine their ultimate liability is “the standard of care.” So, I return to the question above, can we, nay should we care any more? The answer lies in an understanding of the concept of standard of care and its origins.

Origins of Standard of Care

Courts from every state set the standard by which their professionals are judged. They span decades of decided cases which themselves are founded on cases older still. One of the oldest cases on standard of care in the US, from the Commonwealth of Kentucky, Kortz v. Kimberlin, 165 S.W. 654 (Ct. App. Ky 1914), involved suit by an architect who was not paid his fee for designing and supervising the construction of the defendants’ home. The homeowners countersued alleging negligence and breach of the agreement.

The Kortz court cited to a case from the English court system, a judgment in the Court of Common Pleas, like our trial courts, that was appealed to the Exchequer Chamber, like our court of appeals. The case, Harmer v. Cornelius, 141 ER 94, 5 CB NS 236, (1858), involved a couple of painters for hire who turned out to be not as advertised. The two answered an ad in the paper seeking “two first-rate panorama and scene-painters.” Apparently their skills were lacking, they were fired and then filed suit to enforce their contact.

Hear ye, hear ye!

In holding that they were not entitled to the contract balance, the Harmer Court noted: “T’he public profession of an art is a representation and undertaking to all the world that the professor possesses the requisite skill and ability.” Since these men touted themselves as capable painters, they set a minimum expected level of performance. The court went further:

We are of opinion that this rule must be made absolute. When a skilled labourer, artizan, or artist is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes, -Spondes peritiam artis. Tr.: “He promises to use the skill of his art.”Thus, if an apothecary, a watch-maker, or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts. The public profession of an art is a representation and undertaking to all the world that the professor possesses the requisite ability and skill. An express promise or express representation in the particular case is not necessary.

But, in a nod of consolation to the painters, the Court conceded, “The plaintiff was not competent; but he did not know that he was incompetent.” Better not to know, I guess.

However, after citing to the above principle of long standing, well established law, the Kortz court clarified and limited the responsibility of the architect, noting:

“he does not undertake that his plans will be absolutely perfect, and is liable only for a failure to exercise reasonable skill in the preparation of the plans. Furthermore, if he be employed to superintend the building, he is not liable at all hazards for every defect in its construction, but is only required to use reasonable care and diligence in seeing that the work is properly done.”

This acknowledgement that design professionals need not be “perfect” found its way into most state’s jurisprudence, accompanied by the statement of what is required to meet the standard. Exercise of reasonable skill and diligence became the test.

Perhaps a coat of paint would help.

In the United States Supreme Court 1903 decision of Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, Justice Oliver Wendall Holmes revisited the standard to apply in a claim of negligence. Although not a professional negligence case, (the matter dealt with a claim by a railroad worker against a railroad), the main questions was “whether the freight train was handled in the usual and ordinary way,” in effect in accordance with “the standard of care.” He noted such a question was “one of the commonplaces of the law. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” He seemed to suggest that the standard of care could well be higher than what the current industry custom or practice was, a concept I will explore in subsequent articles.

Modern day pronouncements of the standard of care are much more standard. As is generally stated and accepted in most states, contracts and statutes, the standard of care can be defined as:

The Design Professional shall perform services consistent with the professional skill and care ordinarily provided by similarly situated Design Professionals practicing under the same or similar circumstances.

This simple statement captures the decisions of most courts and sets a simple, easy to understand dictate, which, though easier said than done, is also easier stated than applied, more topics for future exploration.

Why Does Any of This Matter?

Our understanding of what is expected of us guides and governs our every action. We need measurable metrics, clear direction and objective criteria so we can evaluate our work against others. So, when, as professionals, we engage in our craft, we can look to some base standard to grade our performance. We must be acquainted with this baseline “standard of care” for our profession because to fall below it is likely, for design professionals, to put others at risk. Questions remain, however, as the “standard” in practice is anything but. Professional judgment and differing approaches make for different opinions about whether the standard was met in a specific circumstance.

Equally as important, design professionals should be prepared and willing to educate their clients on the truth about the standard of care. Clients need to understand that design professionals, just like doctors, cannot guarantee a perfect outcome. A doctor may have all the best intentions, training and tools, do everything right, and still the patient cannot be cured, despite heroic efforts. The same is true for designers. You are not obligated, nor can you, achieve perfection. It is beyond us as human beings. In fact, it should be expected, particularly in the construction context, where there are millions of moving parts, moving targets and moving bodies, that things will get missed or go wrong. Mistaken beliefs or preconceived notions of what should be expected of you must be dispelled at the earliest opportunity.

However, more and more, clients are imposing the impossible standard of perfection on design professionals. Through custom contracts, or significant modifications to industry form documents, clients are shifting responsibility for anticipated, minor errors and omissions, which do not rise to the level of “negligence,” or a deviation from the standard of care, back on the designer. Try as we might to resist this shift, it is happening. In future articles, I will examine these many efforts to impose perfection as the standard, and make suggestions to design professionals who are negotiating these contracts, on clauses they simply cannot accept, or propose ways to make them more palatable, because as we know, well, “stuff happens,” and you should not always be paying for it.

Time for design professionals to say “no more, no more, no more” to this expansion of duty and get things back to balance in their contracts.

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