Vol. 7 No. 3		March 1988

(Note that the ASCE publication referenced in this article has since been withdrawn from print because of the controversy surrounding its publication. Although the issue has abated since this article was printed, it remains a topic of debate, and may well impact the profession again in the future.)

The standard of care seems to have emerged as something of a hot item in recent months. There is a good deal of discussion loose and about over what it is and what it ought to be. Some is well-intentioned, some self-serving. Serious questions have been raised as to whether any of it is appropriate.

This is no small matter. There are vital interests at stake, and they are yours. At the heart of the controversy lies a fundamental legal concept. At issue is the definition of that concept.

On one side of the issue are those who take the position that there is nothing to be discussed.(fn 1) Negligence is defined in the law as failure to exercise reasonable care given the specific circumstances which govern the unique situation at hand. It is, in other words, what it is.

Further definition is neither required, nor desirable. This is so because the law recognizes that, in the thousands of decisions that have to be made in the course of the design and construction of a complex, one-off structure, there is no single, correct course of action. The most one can expect of an architect or an engineer is that those decisions meet a standard of usual and customary professional care-that the decisions, themselves, and the judgments they reflect be reasonable.

Architects and engineers have to violate this standard of professional care in order to be found to be negligent. Proving such a violation can be extremely difficult, for the law allows great latitude and affords enormous protection. It does so because it recognizes that every project is different and that no two professionals are likely to approach any single project in quite the same way.

Those who reject the notion that more objective criteria ought to be prescribed argue that a more precise definition of that which is acceptable is impossible. It is precluded by the unique nature of each design challenge and by the unique combinations of skill and experience which differentiate one design team from the next.

On the other side of this issue are those who are uncomfortable with what they view to be avoidable ambiguity. Shocked by the disaster at the Kansas City Hyatt and determined to stem the rising tide of litigation against architects and engineers, they propose to establish prescriptive guidelines for the conduct of professional practice; guidelines which would transcend what they consider to be relatively inconsequential differences between one project and the next.

There are, according to this view, certain immutable standards, "predetermined requirements," which can and should be used, both to govern the process of design and to measure the quality of professional performance. Key to the identification of these national standards is a universal definition of the roles and responsibilities of each of the players in the construction arena.(fn 2)

Clarification is the goal. If roles and responsibilities are understood and accepted by all concerned, expectations of the design team can be kept under control. If the design team carries out its proper role by meeting its predetermined responsibilities, it should be clear to all that it has performed in a manner which is "reasonable." The hoped for results are improvements in the quality of design and more objective standards by which the outcome of the design process might be judged.

As if this were not enough, now comes the Architectural and Engineering Performance Information Center (AEPIC) with a few ideas of its own. In what purports to be a scholarly paper, complete with footnotes and academic arrogance, AEPIC's Director advances the proposition that the utilization of AEPIC is of such vital importance to the safety and well-being of the public that, in the future, "...it is reasonable to expect that the process of design analysis will include a summary of AEPIC data...."(fn 3)

The Director is neither modest, nor circumspect in his views. He advocates nothing less than modification of the standard of care to require use of the AEPIC data base on every project. Failure to do so would presumably constitute negligence. Professional society opposition to this fanciful notion is dismissed as "collective paranoia."

The AEPIC data base, without question, is a potentially valuable resource. If, as a matter of reasoned and reasonable professional judgment, its use proves to be an appropriate course of action in a particular situation, well and good. But, if AEPIC cannot see its way clear to leave that decision to individual architects and engineers, will it continue to receive the support of the professions it hopes to serve? Possibly not, wishful thinking notwithstanding.

Quality in the Constructed Project is viewed by its advocates as a useful, if not an essential refinement to the existing legal definition of professional negligence. According to this point of view, the benefits to be derived from clarification of the responsibilities and practices which constitute acceptable performance far exceed any risks that might be involved.

Those who oppose any such clarification argue that it ignores, at great peril to the professions, the unique nature of every project and the unique circumstances which govern the behavior of the project participants. It is their belief that any undertaking, including the issue at hand, which entails the risk of expanding the negligence standard entails far too much risk, indeed.

All this can only be taken very seriously. The issue is one of fundamental importance to every architect and engineer in the United States. What makes it so difficult for all concerned (and underlying the substance of the debate) is the fact that it engages those who are comfortable with ambiguity, on one side, and those who are not, on the other. What makes it so crucial to you is that how negligence is ultimately defined and measured will govern how you conduct your practice.

Where do you stand? Wherever it is, let your professional society know. The outcome is too important to you for your voice to go unheard.

(fn 1) Franklin, James R., An Architect Looks at the Standard of Care (Washington: AIA, October 1987).

(fn 2) American Society of Civil Engineers, "Executive Summary," Quality in the Constructed Project: A Guideline for Owners,.Designers and Constructors (New York: ASCE, October 1987).

(fn 3) Loss, John, "AEPIC Project: Update," Journal of Performance of Constructed Facilities, Vol. 1, No. 1 (1987).