Raising the Bar: Implications of Sustainable Design on the Design Professional Standard of Care?
By: Joseph P. Seaman, Esq., LEED AP
Introduction
As building technologies have become more environmentally friendly and technologically advanced, the design and construction industries have evolved to meet the challenges of building in the 21st Century. With the advent of sustainable design, the design and construction industries have met the challenges head on in an attempt to design and build the most environmentally friendly and technologically advanced buildings ever. As a result of these advancements, owners and design professionals need to be cognizant not only of the economic benefits of building in such an evolving marketplace, but also the legal implications to the standards of care expected of design professionals in order to plan their projects accordingly.
Standard of Care
In the absence of a contractually created standard of care, Design Professionals, i.e. architects and engineers in New York must perform to the common law standard of care that requires Design Professionals to exercise the same degree of care and competence exercise by a reasonably skilled member of the profession within the community in which the Design Professional practices.[1] The law further requires Design Professionals to keep abreast of generally accepted practices and changes and new developments in the field.[2]
The American Institute of Architects, (AIA) has also included a similar standard in its most recent iteration of the AIA B101-2007 Standard Form Agreement between Owner and Architect:
“[t]he Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.”
By this recent inclusion of the standard of care language the AIA attempts to harmonize the contractual standard of care with the common law standard of care established in with some degree of variation by most state courts.
The common law standard of care is a relative, subjective standard of care that measures a design professional’s competence against that prevailing in the profession within the same geographic area. As professional practice evolves, so does the benchmark for the standard of care. Do BIM and sustainable design raise the benchmark for the professional standard of care? At the present time, the benchmark for Design Professionals is unclear. Agreements between Owner’s and Design Professional must more explicitly state the roles and responsibilities of the parties and project expectations to manage the risks of building in such a dynamic marketplace.
Historical Perspective
Sustainable Design: There is no more current phrase in the American lexicon than “green” or “sustainable” anything. Over the past five years, “sustainability” and “sustainable design” have become buzzwords branded into the American social conscience. Sustainable Design, however, has its economic benefits as well. Lower operating costs, tax credits and higher levels of productivity are just a few of the benefits touted by organizations like the United States Green Building Council (USGBC) who are at the forefront of the sustainable design efforts.
The USGBC’s Leadership in Energy and Environmental Design, or LEED rating system established a methodology by which we measure the sustainability of a building’s design by considering such criteria as site selection, energy efficiency, indoor environmental factors and use of regional and renewable material resources to determine the degree of sustainability of a project. The USGBC also created a process for professionals wishing to become LEED accredited.
The AIA has also gotten on board with new edicts included in the AIA (2007) documents and its cannon of ethics mandating that architects recommend and advocate for sustainable design alternatives.[3]
Furthermore, State governments have mandated sustainable design efforts as well. For instance, in December 2004, New York Governor George Pataki signed Executive Order 111, requiring that all new state buildings greater than 20,000 gross square feet achieve a 20% improvement in energy efficiency over State Energy Conservation Code, while requiring re renovations of existing state buildings greater than 20,000 square feet achieve 10% improvement.
In August 2009, the New York State Assembly went one step further and enacted the New York State Green Building Construction Act effective August 26, 2010, and requires that all new state buildings in New York be constructed to meet sustainable design standards to be established by Office of General Services (OGS).[4],[5]
Where are we now? – A Crossroads.
Sustainable Design: With the apparent paradigm shift to sustainable design over the past five years, owners and Design Professionals must be aware of the effects that it will have on the professional standard of care required of Design Professionals. With the USGBC’s LEED rating system and LEED accreditation process, more is expected of those who call themselves LEED Accredited Professionals.[6] The title implies a higher degree of knowledge about the LEED Rating System and sustainable design strategies. Are Design Professionals who are also LEED AP’s measured against the reasonable architect practicing in same community or against the reasonable LEED AP Architect practicing in the same community? To further complicate things, LEED AP’s can now be accredited in a specific LEED rating system.[7]
The AIA’s edict to raise professional responsibility to advocate, and encourage sustainable design, will also have an impact on the benchmark for the standard of care as incorporating sustainable design strategies has become commonplace for the design professional. This is not a new phenomenon as the design professions have evolved the standard of care is flexible enough to adapt and evolve as well.[8] But, in the past change has been more incremental compared this rapidly evolving climate
Additionally there are pitfalls associated with failing to achieve sustainable design goals. Although there is no case yet on the books discussing liability for failing to obtain stated sustainable design goals, the issue of liability arises. Because the LEED certification process requires collaboration between both the Design Professionals and Contractors, failure to obtain a stated LEED goal for instance will likely fall on one of the parties. If the design is free of defects, yet installed improperly, then the liability lies with the contractor, if the design is flawed and incapable of achieving the desired result, but installed properly, then liability falls on the shoulders of the Design Professional.[9] In any event the claim will likely be governed by the contract language rather than any standard of care, if the stated sustainable design goals are not achieved.
The enactment of statutes mandating sustainable design strategies will also raise the benchmark for the professional standard of care as well. A design professional who fails to meet the stated goals established by the New York State Green Building Construction Act or other state statute may be subject to a higher standard of care of negligence per se.[10] Failure to comply with the statute is negligence.
Risks and Benefits:
Risks of Sustainable Design: The paradigm shift of towards sustainable design has occurred so quickly, that the ramifications on the liability of all parties involved in the sustainable design process have yet to be felt. The risks inherent in sustainable design include: (1) the enactment of new legislation and mandates requiring buildings to meet sustainable design standards (2) failure to achieve stated sustainable design goals (3) warranty exclusions from insurance coverage.[11] There is currently no case on the books dealing with failure to achieve sustainable design goals. Further, as political pressure mounts, more and more laws mandating some type of “green” design will be required on more public projects. The issue here is that designs are not certified by the USGBC, buildings are. Therefore, attaining LEED certification at any level requires a collaborative effort by both the Design Professionals and builders to ensure that the stated goals or mandates are met. Failing to obtain even one point could jeopardize the project’s LEED certification. Because there are many real incentives tied to certification, failure to obtain sustainable deign goals could mean translate into financial loss for owners.
To exacerbate the risks, sustainable designs often rely heavily on relatively new and unproven building products and materials with little or no proven track record. As a result, the Design Professionals must relay on product literature and limited data in making materials selections and executing their design. And builders must install and erect building components with little or no experience with a particular building system.
To effectively manage the risks involved in building “green” the parties should ensure that their agreements address the above risks up front to avoid potential liability later on. The agreements should clearly indicate the parties’ roles and responsibilities with respect to their obligations in the design, construction and documentation of the sustainable elements of the project. Also, for public projects that may be subject to mandates and statutes regulating sustainable deign, the agreements should expressly state the applicable laws and mandates rather that boilerplate contract language requiring that the project be designed and built pursuant to all applicable laws.
Implications of Going Green on Liability Coverage: Sustainable design also has impacts on liability coverage. Typically, a Design Professional’s E+O insurance will cover any design defects, even those related to sustainable design, however, the E+O carrier will excludes any services it considers a warrantee or guarantee made by the insured. Consequently, the contact language becomes critical when establishing sustainable design standards and design services in general. Furthermore, because the LEED certification process relies on efforts by both the Design Professional and the builder in documenting the design, liability for failing to meet the stated objectives may become illusive. But where the contract clearly establishes the roles and responsibilities of the parties with respect to sustainable design, building and documentation of the project, that risk can be mitigated.
Conclusion:
The AIA edict that Architects shall promote, and advocate for sustainable design has gained traction in recent years and with the proliferation of LEED AP’s in the design profession. However, in the near term, the applicable standard of care is unclear. Eventually, as these services become the norm for design professionals, the standard of care will evolve accordingly. Until these strategies and methods become commonplace in the industry, Owners must protect themselves through the contract language. As a result of the rapidly changing design climate predicated by an the increased influence of sustainable design, it has become increasingly important to clearly establish roles, responsibilities and standards of care for all of the parties before construction begins.
[1] See Nieman-Irving & Co. v. Lazenby, 263 NY 91, 188 NE 265 (1933), Major v. Leary, 241 App Div 606, 268 NYS 413 (2nd Dept. 1934).
[2] Hubert v. Aitken, 19 NYSR 914, 2 NYS 711 (3rd Dept. 1888), affd. (CP Ct) 5 NYS 839, affd without op 123 NY 655, 25 NE 954 (1890)
[3] Canon VI Obligations to the Environment, AIA 2007 Code of Ethics and Professional Conduct (http://www.aia.org/about/ethicsandbylaws/index.htm#P3_417) accessed on March 3, 2010
[4] L.2009, c. 380, § 3, eff. Aug. 26, 2010.
[5] In response to Executive Order 111, the OGS established procedures referencing the USGBC LEED System, but have yet to establish regulations in response to the Green Building Construction Act (http://www.ogs.state.ny.us/dnc/generalInfo/DesignManual/09050GreenCleanBuildings.pdf) accessed on March 2, 2010.
[6] According to the USGBC, there are over 100,000 LEED AP’s today and over 35,000 projects are currently participating in the LEED system, comprising over 4.5 billion square feet of construction space in all 50 states and 91 countries. (http://www.usgbc.org/DisplayPage.aspx?CMSPageID=124) accessed on March 2, 2010.
[7] i.e. LEED for Building Design & Construction, Interior Design & Construction, Homes, Operations + Maintenance, Neighborhood Development (http://www.gbci.org/DisplayPage.aspx?CMSPageID=84) accessed on March 2, 2010
[8] See Architectural Malpractice: A Contract-Based Approach, 92 Harv. L. Rev. 1075 (1979)
[9] When LEED isn’t achieved, who’s to blame?, Consulting Specifying Engineer, August 1, 2009, Eli Kaberon, editor.
