5.52 PROFESSIONAL LIABILITY OF AN ARCHITECT/ENGINEER
(Approved 11/95)
A. General Duty Owing
In
this action plaintiff contends that defendant was negligent because he/she did
not comply with the standard of care that the law imposes upon him/her while performing
the work of his/her contract with __________________. Plaintiff contends that as a result of
defendant's negligence plaintiff suffered injury for which damages are sought.
To
decide this case properly you must know the standard of care imposed by law against
which defendant's responsibilities as an architect should be measured.
An
architect represents that he/she has and will use the degree of knowledge,
skill, judgment and taste ordinarily possessed and used by the average
architect in the profession.[1] Further, the architect’s conduct must be
measured by the standard architectural practice, in the same or similar
communities, at the time the architect was performing his/her services. Thus an architect has the duty to have and to
use that degree of judgment, knowledge, skill and taste which architects of
ordinary ability possess and exercise, in the same or similar communities, at
the time the architect performs his/her services. This is the standard by which to judge the
architect in this case.
The
law does not expect or require perfection.
Unsatisfactory results, alone, are not necessarily evidence of lack of
skill or proper care. Thus, if you find
that the architect has exercised that degree of knowledge, skill, judgment and
taste which is possessed and used by the average architect, you may not find
him/her liable for negligence even though unsatisfactory results may have
occurred.
Further,
where, according to standard architectural practice, the work involves matters
to be subjected to the judgment of the architect, the architect is allowed to
exercise that judgment. An architect is
not liable if, in the exercise of that judgment, in accordance with accepted
standard, a bad result occurs. If in the
exercise of his/her judgment an architect selects one or two or more courses of
action, each of which under the circumstances has substantial support as proper
practice in the architectural profession, the architect is not negligent even
if the course chosen produces a poor result.
However, an architect who departs from
standard architectural practice cannot excuse himself/herself from the
consequences by stating it was an exercise of his/her judgment. If the exercise of an architect's judgment
causes him/her to do that which standard architectural practice forbids, he/she
is negligent. Similarly, an architect is
negligent if his/her judgment causes him/her to omit doing something which
under the circumstances is required by standard architectural practice.
Simply
stated, then, the obligation or duty which the law imposes on an architect is
to bring to his/her client that knowledge, skill, judgment and taste ordinarily
possessed and exercised in similar situations, in the same or similar
communities, in his/her field at the time of the undertaking. If you find that the defendant has complied
with this standard, he/she is not liable to the plaintiff, regardless of the
result of his/her work. On the other
hand, if you find that the defendant has departed from this standard of care,
and that such departure has resulted in injury or damage, then you should find
the defendant liable for his/her negligence.
Cases:
For a definition and discussion of the scope of
the duties owed by an architect to his/her client, see Sykes v. Propane Power Corp., 224 N.J. Super. 686
(App. Div. 1988); Walker Rogge, Inc. v. Chelsea Title and Guar. Co. , 222 N.J. Super. 363 (App. Div. 1988), aff’d,
116 N.J. 517 (1989); Restatement (Second) of Torts, Section 299A
(1975); Bloomsburg Mills v. Sordoni
Construction Co., 164 A.2d 201, 203 (Pa. 1960); Bonadiman-McCain,
Inc. v. Snow, 6 Cal Rrtr. 52, 60 (Cal App. 1960); Paxton
v. Alameda Cty., 259 P.2d 934 (Cal. App. 1953); Chapel v.
Clark, 76 N.W. 62 (Mich. 1898); Coombs v. Beede, 36 A.
104, 104-105 (Me. 1896). With respect to
the fact that an architect is not an insurer, guarantor or warrantor of a
perfect result, see Wills v. Black & West Architects,
344 P.2d 581 (Okla.
B. Expert
Testimony to Prove Standard of Care[2]
Negligence
is conduct that falls below a standard of care required by law for the
protection of persons or property from foreseeable risks of harm.
In
a suit against an architect, jurors normally are not qualified to supply the
standard of care by which to measure the defendant's conduct. Based upon their common knowledge alone,
without technical training, jurors usually cannot know what conduct constitutes
standard architectural practice.
Therefore, ordinarily, when an architect is charged with negligence, the
standard of practice by which his/her conduct is to be judged must be furnished
by expert testimony; that is to say, by the testimony of persons who by
knowledge, training or experience are deemed qualified to testify and to
express their opinions on standard architectural practice.
As jurors,
you should not speculate or guess about the standards which the average
architect should follow. In a case such
as this, you as jurors must determine what is standard architectural practice
from the testimony of the expert witnesses who have been heard in this
case. After hearing such testimony and
deciding what standard architectural practice is in the circumstances of this
case, you as jurors must then determine whether the defendant has complied with
or whether defendant has departed from that standard of care. If you find that the defendant has complied
with this standard, he/she is not liable to the plaintiff, regardless of the
result of his/her work. On the other
hand, if you find that the defendant has departed from this standard of care,
and that such departure has resulted in injury or damage, then you should find
the defendant liable for his/her negligence.
Cases:
If the failure of the architect's performance is
so clear that professional negligence may be found without the addition of
expert testimony, this instruction is necessary. As to the necessity of expert testimony in
architectural malpractice cases, see Walker Rogge, Inc. v. Chelsea
Title and Guar. Co. , 222 N.J. Super.
363 (App. Div. 1988), aff’d, 116 N.J. 517 (1989); Covil v. Robert & Co., Assoc., 144 S.E.2d
450 (Ga. App. 1965); Pittman Construction Co. v. City of New Orleans,
178 So.2d 312 (La. App. 1965); Paxton v. Alameda
C. Common
Knowledge May Furnish Standard of Care
Negligence
is the failure to comply with the standard of care required by law to protect a
person from foreseeable risks of harm.
Negligence in an architect's practice is the architect's failure to
comply with the standard of care required by law in the performance of his/her
duties. Usually it is necessary to
establish the standard of care by expert testimony, that is, by testimony of
persons who are qualified by their training, study and experience to give their
opinions on subjects not generally understood by persons who lack such special
training or experience. In the usual
case, standard architectural practice by which to judge defendant's conduct
cannot be determined by the jury without the assistance of expert testimony.
However,
in some cases, such as the case at hand, the jury may determine from its common
knowledge and experience the standard of care by which to judge defendant's
conduct. In this case, plaintiff
contends that defendant violated the duty of care he/she owed to plaintiff by
doing ______________/by failing to do ______________. In this case, therefore, it is for you, as
jurors, to determine, based upon common knowledge and experience, what skill
and care the average architect would have exercised in the same or similar
circumstances. It is for you as jurors
to say from your common knowledge and experience whether defendant did
something which the average member of his/her profession would not have done or
whether defendant failed to do something or failed to take some measure that
the average member of his/her profession would have done or taken in the
circumstances of this case.
NOTE TO JUDGE
Where there has been expert
architectural testimony as to the standard of care but the standard is one
which can also be determined by the jury from its common knowledge and
experience, the jury should determine the standard of care after considering
all the evidence in the case, including the expert architectural testimony, as
well as its own common knowledge and experience.
After
determining the standard of care required in the circumstances of this case,
you should then consider the evidence to determine whether defendant has
complied with or departed from that standard of care. If you find that defendant has complied with
that standard, he/she is not liable to the plaintiff, regardless of the result
of his/her work. On the other hand, if
you find that the defendant has departed from that standard of care, and that
such departure has resulted in an identifiable injury or damage, then you
should find defendant liable for his/her negligence.
Source: https://njcourts.gov/attorneys/civilcharges.html
[1] This charge is equally appropriate for other
design professionals, such as: engineers, land surveyors, professional
planners, etc. However, the term “taste”
would be deleted from the standard applicable to professional engineers and
other non-aesthetically oriented design professionals.
[2] If the failure of the architect’s performance
is so clear that professional negligence may be found without the aid of expert
testimony, this instruction is unnecessary.
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