Exercising The Standard Of Care

Wednesday, December 1, 2004 - 00:00

E. Mitchell Swann, P.E.
MDC Systems

"...and thus [The names of your defendant goes here] failed to exercise the standard of care requisite of a professional in the practice of blah, blah, blah..."

So goes the familiar refrain of many disputes involving architects, engineers, construction managers and a myriad of other professionals where the outcome of a particular project or endeavor has not met the expectations of one or many of the parties involved.

'Exercising the Standard of Care' - what exactly does that mean? How much 'exercise' do you need to be 'healthy'? Who should do the exercising? If the quarterback trains, but the receivers do not, chances are the pass will go incomplete.

The Standard of Care is a well recognized 'term of art', but one which is prone to misunderstanding and misinterpretation. Obviously, the design or construction professional that fails to meet the applicable codes and standards in effect at the time of the design or construction effort has not met the 'Standard of Care.' Keep in mind that most Building Codes are written to establish the minimum level of performance to be considered a 'usable' building. Would you want the 'Standard' to be solely based on the minimum acceptable level of performance?

A legal summation of the Standard of Care reads as follows:

"...exercise the average degree of skill, care, and diligence exercised by members of the same profession (or specialty within that profession), practicing in the same or a similar locality on a project of a similar nature in light of the present state of the profession (Gillette v. Tucker)."

See Black's Law Dictionary, 6th edition. 1404-5.

In performing professional services for a client, a [professional] has the duty to have that degree of learning and skill ordinarily possessed by reputable [professionals], practicing in the same or similar locality and under similar circumstances.

"It is [a professional's] further duty to use the care and skill ordinarily used in like cases by reputable members of the profession practicing in the same or similar locality under similar circumstances, and to use reasonable diligence and [the professional's] best judgment in the exercise of professional skill and in the application of learning, in an effort to accomplish the purpose for which the [professional] was employed."

A Bench Approved Jury Instruction (BAJI, 1986)

Construction almost always involves some form of a team. The objective of the team is, at least in the near term, to get the project built and operating. In today's construction marketplace time has never been more 'of the essence.' Time to market and time of delivery have compressed schedules from gaseous mists to densely packed solid forms where almost everything is on the critical path. In this environment it is essential that all members of the team know their roles, know the playbook, and have exercised sufficiently to ensure that all concerned fulfill their obligations. A missed information hand-off or task tackled can have disastrous results for the team and the game. It would seem that all concerned have some level of performance to which their fellow teammates might expect be met - some 'Standard of Care.'

The Standard of Care for design professionals has been negotiated, mediated, arbitrated, and litigated in great depth throughout the history of the construction industry. There is much in case law and precedent which can be used to establish a 'Standard' based on history. But does this historical standard give an accurate picture of today's construction industry? Perfection is not a reasonable expectation, but competency is. Decisions made by design firms early on have always proved pivotal in a project's success, but in fast track and hyper fast track construction, the criticality of clear communication and the importance of early assumptions become paramount. Performance and value-based execution contracts mandate that all project team members understand the yardsticks for quality, acceptance and performance for the project and decide on those yardsticks early in the project.

Traditionally, the term 'Standard of Care' has been primarily applied to engineers and architects - the 'professionals' on the team. Contractors have been held principally to more of a 'quality of workmanship' standard and of course time\schedule. But the increased use of Construction Management and Design-Build as project delivery methodologies drives an expectation of 'professionalism' from the construction portion of the team too. CMs and D|B firms, having experience in delivering many types of projects in many different 'scenarios,' could reasonably well be expected to offer their insights on the probable outcome or consequences of certain courses of action, based on their experience. As the line between design and construction blurs or overlaps, early and cogent input from construction professionals is an important factor in project success.

Owners have a critical role to play in this team as well. Once again, the fast pace of today's project execution world makes timely decision making and information transfer even more important than before. In order for the design and construction components to operate efficiently, the Owner must handle his/her end of the project expeditiously and with clarity. If rapid delivery is key to a project, it might behoove an owner to do some internal research on those components of the project which are critical to the business operation, the final design or the project execution approach. Some of these types of evaluations are best integrated into the early design effort, but others warrant even earlier analysis. It is also important for an Owner to stay abreast of the project's progress so that decisions can be made in a timely fashion with a more complete knowledge of the impacts of those decisions on the overall project. As important as it is for an Owner to interact with the delivery time in a timely fashion, it can be equally important for an Owner to know when 'less is more' - when to step out of the way. As much impact can be had by micro-management of the team as by absentee management. The term 'act or failure to act' reflects the results of inappropriate Owner involvement in a project. Knowing when best to step out of the way and when to chime in; what are the 'must have' and 'nice to have' items on the project and the business implications of certain outcomes, beyond the project budget, are key components of the Owner's contribution to the process. These principal elements could be said to be the Owner's 'Standard of Care.'

A successful project depends upon the competency of and communication amongst the entire project team. It is important that the design have, or acquire, the requisite skills necessary to satisfy the demands of the project program; the construction process must be planned, managed and staffed properly to affect a positive outcome and the original direction and project intent must be defined properly and clearly so that effort, time and resources are not spent going down the wrong path.

E. Mitchell Swann, P.E. is Vice President of MDC Systems.