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Architect Malpractice: Expert Testimony That the Architect Violated an Unwritten Custom or Practice Among Design Professionals May Be Used to Support Liability

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Construction Group Newsletter

January 3, 2011

As a general rule, design professionals are required to use that ordinary and reasonable skill which is usually exercised by one in their trade or profession. The application of the professional standard of care is inherently variable and depends upon the specific relevant facts, circumstances, and terms of engagement. What other similarly qualified and experienced design professionals do in similar circumstances must also be considered in determining the appropriate standard of care. The standard of care in a professional negligence case must be established by expert testimony, and breach of the standard of care is typically shown by violation of written professional standards, sometimes incorporated into building codes. The expert’s opinion must relate to a generally accepted standard in the profession (an objective standard), as opposed to the expert’s personal opinion (a subjective standard).

In Vitale v. Seibert, 2009 N.J. Super. Unpub. LEXIS 3021 (App. Div. Dec. 11, 2009), New Jersey’s Appellate Division held that expert testimony that a defendant architect violated an unwritten custom or practice indicating a consensus of the professional community is sufficient to establish breach of the standard of care. In that case, the plaintiff homeowners sued the defendant architect and his employer, alleging that in purchasing their house they had relied on a report prepared by the architect that assured them the house was structurally sound even though there were observable defects. The homeowners alleged that substantial structural problems were thereafter discovered. The architect and his employer moved for summary judgment, claiming that the homeowners’ expert failed to articulate the standard of care applicable to defendants. The trial court denied the motion and plaintiffs ultimately received a $30,000 award in binding arbitration.

On appeal, the architect argued that the opinion offered by the homeowner’s expert as to the applicable standard of care failed because the expert was unable to cite to a specific source for the standard of care, which the architect claimed indicated the expert was improperly relying upon his personal opinion. While the Appellate Division agreed that an expert’s opinion as to the standard of care may not be premised on the expert’s personal opinion, the Court determined that the homeowner’s expert clearly testified that there was a consensus among architects that, when encountering structural defects, the standard of care requires an architect to consult with a structural or soils engineer. The Court held that the expert’s inability to cite a source for this consensus was not fatal to the opinion because an expert may rely upon an unwritten custom or practice indicating that the consensus of a professional community recognizes a particular standard of care.

The Vitale decision sets forth a couple of important points relating to malpractice claims against design professionals. First, experts in a professional malpractice case may rely upon a consensus in the field, even if they are unable to identify any authority for that consensus, in offering an opinion as to the applicable standard of care. In addition, the case emphasizes that the professional liability of an architect can be premised on his or her failure to consult other sub-specialists in various engineering disciplines when specific conditions dictate. The opinion offered by the homeowner’s expert in Vitale and the Court’s acceptance of that opinion implicitly recognizes the proliferation of design consultants involved in the building trades and suggests that any architect who goes at it alone, does so at his or her peril.