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Does a commitment to comply with building codes change the standard of care?

In most jurisdictions and with most contracts the common law professional standard of care is used to analyze the performance of services by design professionals even though those services are performed in a contractual contest. Most professional service agreements impose various duties and requirements on the professional. As long as express warranties, guarantees, or other contractual corruptions of what a design professional is capable of providing are not specifically stated in the contract, the standard of care will be applied in evaluating the professional services.

A Florida court, however, thinks differently. In the case of School Board of Broward County, Fla. v. Pierce Goodwin Alexander & Linville the court determined that although the contract stated that the architecture firm would meet the standard of care, it also stated that the services would be “in compliance with any and all applicable codes, laws, ordinances…” Although the trial court ruled that the professional standard of care was met, the appellate court sided with the client, who argued that the references in the contract to compliance with governing laws created a heightened standard of care—essentially a “breach of contract” standard that was absolute. The architecture firm designed a school that met code as originally interpreted by a building official, but while the project was being constructed, the building code official made a different ruling requiring modifications that resulted in additional costs to the client.

The appellate court determined that the code-related clauses in the contract raised the standard to what amounted to a warranty and that the firm was required to “deliver plans that would be code-compliant rather than merely requiring plans [to be] prepared with ordinary and reasonable skill services.” So the case was remanded to the trial court for new proceedings that would instruct the jury to use the heightened standard of care.

Code compliance, whether stated in a contract or not, is a basic expectation of professional design services. And standard contracts such as the AIA and EJCDC contracts rely on such basic expectations built into the standard of care with no contractual obligation that might modify the standard by stating that the design and deliverables must comply with all codes.
Obviously, every case brought to litigation turns on the facts of the specific project and client relationship. And courts, relying on legal arguments and expert witnesses, at times seem to establish rights or obligations that no one anticipates. So a case such as this reinforces the following message for design professionals: always read your contract with the assistance of your legal counsel and clarify the terms before the project begins.

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