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Design and Professional Liability

Who Can Opine on the Design Professional's Standard of Care?

Kenneth Slavens | January 31, 2015

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Architect looking at construction plans

In claims against those in the design professions where the allegation is that there has been a failure to comply with the standard of care, virtually every case will require the party making the claim to have an expert to render the opinion on how the design professional failed to meet the applicable standard. A recurring point of contention is what qualifications the person who will render that opinion must have.

Claimants frequently argue that architects and engineers have so much overlap in their respective practice areas that a member of one profession should be permitted to render an opinion that a member of the other profession has deviated from the standard of care. The design professional almost invariably argues the opposite.

Hill International v. Atlantic Board of Education

The Superior Court of New Jersey, Appellate Division, recently contributed to the resolution of this question. The court decided that if the claim is that an architect violated the standard of care, the expert rendering the opinion needs to be an architect. In the opinion, the court walks through an insightful analysis supporting its reasoning in reaching the conclusion. The opinion was rendered in Hill Int'l v. Atlantic City Bd. of Ed., 2014 N.J. Super. LEXIS 177 (App. Div. Dec. 30, 2014), which involved a lawsuit brought by a contractor against a number of entities involving the construction of a school building in Atlantic City, New Jersey.

SOSH Architects and the Atlantic City Board of Education ("the Board") entered into a contract for design under which SOSH was contractually obligated to provide normal structural, mechanical, and electrical engineering services. SOSH was also to provide the various phases of typical design including construction documents as well as administration of the contract for construction in cooperation with a construction manager.

The project was bid, and Cobra Construction won the bid. Construction began, and problems developed. Cobra claimed that the architect, the Board, and others impeded and interfered with its ability to complete the project in a timely manner. In particular, Cobra claimed that SOSH's plans contained errors and omissions and were not coordinated. In addition, Cobra claimed that SOSH failed to timely act on permits and approvals and failed timely to grant proper change orders and time extensions.

Cobra filed its suit and alleged, among other things, that SOSH deviated from the professional standard of care in design of the project and in the administration and oversight of the construction contract.

Determining a Like-Licensed Professional

New Jersey is one of a number of states that have certificate or affidavit of merit statutes, which require the party asserting a claim against licensed professionals, such as architects or engineers, to file in a timely manner an affidavit from a "like-licensed" professional attesting that the architect or engineer fell below the applicable standard of care.

In support of its claim against SOSH and to comply with the affidavit of merit requirements in the statute, Cobra filed an affidavit from a registered professional engineer. The expert engineer who filed the affidavit had outstanding credentials. He had a bachelor of science degree, a bachelor of science in civil engineering degree, and a master of science in civil engineering degree, as well as an M.B.A. He was a registered licensed engineer in several states. He was a member of and held offices in a number of professional organizations.

The expert engineer was also an adjunct professor at the School of Architecture of the New York Institute of Technology teaching undergraduate courses "related to structural design and construction management and supervision." The expert had what the court called "extensive experience in construction claims evaluation and in review and analysis of contractor schedules."

However, he was not an architect.

Once the affidavit was filed, SOSH moved to dismiss the claims against it on the basis that the affidavit submitted by Cobra was improper. SOSH believed it was improper because the expert was a civil engineer and not an architect—as SOSH contended was required.

In response, Cobra argued that engineers and architects have overlapping areas of expertise and training, and, in some instances, they are even authorized to perform the same tasks.

The Ruling

The court first noted that the statute requiring the affidavit of merit lists architecture and engineering as separate professions. The court noted that some of its state's statutes and regulations that govern architects and engineers recognize a degree of common ground shared by the two professions. However, each profession has its own respective licensing requirements and core areas of practice as well as distinct professional boards. The court reasoned:

The existence of such overlaps as to certain tasks or functions that can be lawfully performed by more than one category of licensed professional does not, however, mean that an [affidavit of merit] from an expert holding a different category of professional license will pass muster.

To make its point, the court outlined a few illustrations. For example, the court noted that a physician is qualified to take and record a patient's blood pressure, and a nurse is equally qualified to do the same. However, the court said that nurse could not file an affidavit of merit against a physician or vice-versa. The court went on:

A licensee practicing within his or her profession or occupation who makes a mistake and harms another person should reasonably anticipate that he or she can be held to account for that mistake by the professional board that has issued him or her a license to practice.... In addition, the licensee must fairly anticipate that he or she could be sued for malpractice by the injured party, upon proof that he or she strayed from the "acceptable ... standards or treatment practices" within his or her profession or occupation.... The professional has a right to expect that those standards of care by which his or her conduct will be measured will be defined by the same profession in which he or she holds a license, and not by some other profession.

The court therefore ruled that the trial court erred in its holding that a licensed engineer sufficed to support the claims that SOSH deviated from professional standards. Rather, following the like-licensed requirement, only another architect could make that determination.


New Jersey is not the first state to render a holding of this kind. However, the court's reasoning and explanation of how it reached its conclusion are a good resource to validate the argument that it really does "take one to know one" when making claims related to the standard of care for the design professions.

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