Design Professional Liability
Typically, design professionals such as architects and engineers will not expressly guarantee or warrant flawless designs. Design professionals deal in imprecise fields where perfection is impossible. Therefore, design professionals are not required under the law to furnish perfect plans or to achieve satisfactory results. SME Industries, Inc. v. Thompson, Ventulett, Stainback and Associates, Inc., 2001 UT 54, ¶ 28, 28 P.3d 669. Furthermore, well-advised design professionals include provisions in their contracts disclaiming perfection or guaranteeing satisfactory results.
Unless expressly disclaimed, however, a warranty to use reasonable and customary care in the performance of contractual duties is implied in design professional contracts. Id. at 31. Conceivably, a design professional could contractually disclaim this implied warranty, but a well-advised owner would find another design professional.
Breach of this implied warranty gives rise to a claim in contract. Therefore, only a party to the contract or a valid assignee of the contract may bring a claim for the breach. Id. at ¶ 29. Furthermore, only contract remedies are available. Accordingly, remedies under negligence law such as punitive damages and compensatory damages for pain and suffering for example are not available.
Sometimes flaws in the designs make it impractical or impossible for the contractor to build according to the plans and specifications. If a contractor discovers or reasonably should have discovered the flaws in the bidding process, he has a duty to point them out before bidding, but if the flaws were not and reasonably could not have been discovered during the bidding process, the contractor will require additional compensation and time to perform changes to the project. Although the owner relied on the design professional for the design portion of the project, the owner often will not have a claim against the design professional because perfection is not required under the law and the design professional used reasonable and customary care in the design process and otherwise disclaimed a satisfactory result. Under these circumstances the owner generally eats the additional cost unless the owner can show that the contractor knew or should have known about the flaws at the time of contracting.
Under tort law as opposed to contract law, design professionals have a duty to perform their services so as to eliminate any unreasonable risk of foreseeable injury. Nauman v. Harold K. Beecher and Associates, 24 Utah 2d 172, 467 P.2d 610, 615 (Utah 1970); see also Hunt v. ESI Engineering, Inc., 808 P.2d 1137, 1139 (Utah App. 1991). Accordingly, design professionals also have some exposure to claims for negligent designs. Contracting parties and third parties who have suffered personal injuries or damage to property other than the construction project itself as a result of defective designs might have claims for negligence or professional malpractice against design professionals.
In construction, expectations are high and errors are expensive. Accordingly, pressures on design professionals for accuracy and satisfaction are great. When evaluating potential claims and defenses in design professional cases, the parties must remember that while design professionals are held to the high standard of care in their fields, the law does not require perfection or satisfactory results.
Unless expressly disclaimed, however, a warranty to use reasonable and customary care in the performance of contractual duties is implied in design professional contracts. Id. at 31. Conceivably, a design professional could contractually disclaim this implied warranty, but a well-advised owner would find another design professional.
Breach of this implied warranty gives rise to a claim in contract. Therefore, only a party to the contract or a valid assignee of the contract may bring a claim for the breach. Id. at ¶ 29. Furthermore, only contract remedies are available. Accordingly, remedies under negligence law such as punitive damages and compensatory damages for pain and suffering for example are not available.
Sometimes flaws in the designs make it impractical or impossible for the contractor to build according to the plans and specifications. If a contractor discovers or reasonably should have discovered the flaws in the bidding process, he has a duty to point them out before bidding, but if the flaws were not and reasonably could not have been discovered during the bidding process, the contractor will require additional compensation and time to perform changes to the project. Although the owner relied on the design professional for the design portion of the project, the owner often will not have a claim against the design professional because perfection is not required under the law and the design professional used reasonable and customary care in the design process and otherwise disclaimed a satisfactory result. Under these circumstances the owner generally eats the additional cost unless the owner can show that the contractor knew or should have known about the flaws at the time of contracting.
Under tort law as opposed to contract law, design professionals have a duty to perform their services so as to eliminate any unreasonable risk of foreseeable injury. Nauman v. Harold K. Beecher and Associates, 24 Utah 2d 172, 467 P.2d 610, 615 (Utah 1970); see also Hunt v. ESI Engineering, Inc., 808 P.2d 1137, 1139 (Utah App. 1991). Accordingly, design professionals also have some exposure to claims for negligent designs. Contracting parties and third parties who have suffered personal injuries or damage to property other than the construction project itself as a result of defective designs might have claims for negligence or professional malpractice against design professionals.
In construction, expectations are high and errors are expensive. Accordingly, pressures on design professionals for accuracy and satisfaction are great. When evaluating potential claims and defenses in design professional cases, the parties must remember that while design professionals are held to the high standard of care in their fields, the law does not require perfection or satisfactory results.