{"id":892712,"date":"2017-08-09T17:17:57","date_gmt":"2017-08-09T23:17:57","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=892712"},"modified":"2017-08-09T17:17:57","modified_gmt":"2017-08-09T23:17:57","slug":"primer-design-professionals-liability-virginia","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/primer-design-professionals-liability-virginia\/","title":{"rendered":"A Primer on Design Professionals\u2019 Liability in Virginia"},"content":{"rendered":"

Stephen G. Test | Williams Mullen<\/a> | July 27, 2017<\/p>\n

When building a construction project in Virginia, it is essential that you understand the obligations and supporting legal principles for each of the parties involved in the Project.\u00a0 You cannot make an informed judgment of the risk involved unless you know the scope of liability for each party. \u00a0The Owner must provide timely information and payment.\u00a0 The general and the subcontractors must provide sufficient manpower and skilled workmanship. \u00a0The supplier must deliver equipment that meets the design criteria.<\/p>\n

What about the architect or engineer? \u00a0The design professionals must provide design information and administration that allow the project to be constructed on time and on budget, and that meet the owner\u2019s criteria for beneficial use when finished. \u00a0The legal principles underlying the liability of a design professional in Virginia, whether architect or engineer, are unique and differ markedly from those of an owner or contractor. \u00a0That is because of the principle of \u201cprofessional liability.\u201d<\/p>\n

Architects and engineers in Virginia are deemed to be \u201cprofessionals,\u201d licensed and regulated by the Virginia Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects.\u00a0 Because they are professionals, their performance is judged by a \u201cstandard of care\u201d not applicable to others involved in the project.\u00a0 In Virginia, that standard has been determined by the Supreme Court of Virginia to be a duty to \u201cexercise the care of those ordinarily skilled in the business.\u201d\u00a0 The designer must meet this professional standard in both the design and the administration of the project\u2019s construction.\u00a0\u00a0Nelson v. Commonwealth, 238 Va. 228 (1988)<\/em>.\u00a0 This standard is determined by the expert opinion of a licensed design professional accounting for the type, size and complexity of project and its location, describing any deviation from that standard. \u00a0The design professional is not held to a standard of perfection, nor does she act as a guarantor of the design.<\/p>\n

Contractual Liability<\/strong><\/p>\n

When an issue of design professional liability arises on a project, you must know the legal theory to use to establish that there has been a breach of the professional standard of care. \u00a0This begins with a determination of contract liability or tort liability.\u00a0 Assuming there is an enforceable contract, either written or oral, the professional standard of care is implied in the contract for design services.\u00a0See Nelson.\u00a0\u00a0<\/em>Should the contract provide for a higher standard of care, keep in mind that professional liability policies will exclude coverage for such additional contractual liability.\u00a0 The contract may also provide that the design professional has agreed to provide a warranty or guarantee of its design services.\u00a0 A warranty is an enforceable statement regarding the design professional\u2019s own work, such as a certification that the design meets local building codes. \u00a0A guarantee is made with respect to the services of another, such as a designer\u2019s sub-consultant.<\/p>\n

Tort Liability<\/strong><\/p>\n

A tort is a civil wrong. \u00a0The most common tort is negligence.\u00a0 If a person or business does not exercise a reasonable degree of care, it is negligent.\u00a0 Applied here, the design professional must adhere to that professional standard of care, working as carefully as other design professionals under the same or similar circumstances.\u00a0 In Virginia, a failure to adhere to the professional standard of care constitutes negligence.\u00a0 There are essential elements that must be proved to prevail on a negligence theory: (i) existence of a duty; (ii) a breach of that duty; (iii) the breach was the proximate cause of the injury; and (iv) the breach resulted in damages.\u00a0 The law provides that the design professional owes the duty to its contractual partner that it will adhere to the professional standard of care.\u00a0 To establish a negligence claim, you will need expert testimony as to the professional standard of care and its breach, just as in a contract claim.<\/p>\n

Defenses for Design Professionals<\/strong><\/p>\n

There are recognized defenses that design professionals will commonly rely on to defend a claim that their design work or administration breached the professional standard of care. \u00a0These include:<\/p>\n