By Erin Johnson, JCJ Insurance Agency
Design professionals are expected to perform their services consistent with the standard of care for their profession. What is the standard of care? When a negligence claim is made against a design professional, this is a typical definition for the standard of care:
Negligence is the failure to use reasonable care. Reasonable care on the part of an architect/ engineer is the care that a reasonable careful architect/engineer would use under like circumstances. Negligence is doing something that a reasonably careful architect/engineer would not do under like circumstances or failing to do something that a reasonably careful architect/ engineer would do under like circumstances. – Florida Standard Jury Instructions. Section 402.5
While we see many variations in the contracts we review, the intent of this provision is the same – the design professional will use the same skill and care ordinarily exercised by other members of their profession. This is not a standard of perfection. The design professional is considered negligent only when they fail to use reasonable care.
So, is designing to code considered reasonable? Is code compliance enough to satisfy the standard of care? How do environmental factors, such as rising sea levels and climate change, affect the standard of care?
Climate change and its impact on our infrastructure and buildings is becoming more evident. Although there are different opinions on the cause of rising sea levels, global warming, and climate change, the evidence of weather-related damage is overwhelming. 2024 was the hottest year on record. And the planet’s 10 warmest years since 1850 have all occurred in the last decade.[i] In 2024, in the US alone, there were 27 individual weather and climate disasters with at least $1 billion in damages.[ii] With an increase in storm frequency and severity, code compliance may not be enough to avoid a negligence claim against a design professional. The purpose of building codes is to establish the minimum requirements to protect the public health, safety and general welfare of buildings and other structures. Codes are based, in part, on recorded patterns of temperature, weather, and regional geographical conditions – mainly historical data. The trend with natural disasters is most likely going to require that you design based on “foreseeable” conditions, as seen in the claims example below that questions the integrity of the FEMA-designated 500-year floodplain.
A case in Texas, Alexander v. The Woodlands Land Development Company, the developer and stormwater engineer were sued by a group of residents. The tract of land for the development had a low area that included both a FEMA-designated 100-year floodplain and 500-year floodplain. The design avoided the 100-year flood zone and located the houses in the 500-year zone. Heavy rainfall during and after Hurricane Harvey in 2017 caused several feet of water to flood the streets and houses of the development. The residents contend the flooding was foreseeable based on past flooding of the area. The lawsuit alleges that the engineering defendants made errors when designing the storm water management system and that it was not designed to handle rainfall amounts that should have been reasonably anticipated. EJCDC (Engineers Joint Contracts Document Committee, comprised of NSPE, ACEC, and ASCE) commented on the claim “the court did not embrace the [defendants] argument that FEMA designations are the sole source for determination of the soundness of planning and design decisions regarding flood exposure. By implication, the professional standard of care may require going beyond adherence to codes and FEMA maps, by also taking into account “foreseeable” conditions, perhaps based on recent trends or emerging scientific information. [iii]
Legal Risk for Design Professionals
Climate-related claims against design professionals are unusual, but there are signs, as this case shows, that this will change in the future. Design professionals need to be proactive in understanding the climate changes affecting their communities as the professional standard of care may require going beyond current codes. As we learned in the Texas claim example, design professionals can be judged on whether their design was reasonable under specific circumstances that should have been considered based on climate change.
In anticipation of this evolving trend, many design firms are focusing on sustainable and resilient design.
The Resilient Design Institute defines resilient design as:
the intentional design of buildings, landscapes, communities, and regions in response to vulnerabilities expected with a warming planet: more intense storms, greater precipitation, coastal and valley flooding, longer and more severe droughts in some areas, wildfires, melting permafrost, warmer temperatures, and power outages.
Most of the industry professional associations, including NSPE, AIA, and ASCE, have also started to address the importance of resiliency in design.
ASCE Code of Ethics
Engineers govern their professional careers on the following fundamental principles: create safe, resilient, and sustainable infrastructure
Policy Statement 360 – Climate Change
Revisions to engineering design standards, codes, regulations and associated laws that strengthen the sustainability and resiliency of infrastructure at high risk of being affected by climate change.
AIA Code of Ethics and Professional Conduct
E.S.2.4. Environmental Equity and Justice:
…make reasonable efforts to advise their clients and employers of their obligations to the environment, including: access to clean air, water, sunlight and energy for all; sustainable production, extraction, transportation and consumption practices; a built environment that equitably supports human health and wellbeing and is resistant to climate change…
E.S.6.5. Climate Change
Members should incorporate adaptation strategies with their clients to anticipate extreme weather events and minimize adverse effects on the environment, economy and public health.
NSPE endorsed The Role of the Engineering Community in Addressing Climate Change
…It is our duty and purpose to contribute our skills and knowledge of human-centered technologies and of the natural world to lead humanity out of the climate crisis with a focus on sustainable, resilient, equitable, and innovative approaches.
With an increased focus on resilience – by design firms, industry associations, and public policy – design professionals may be at risk for negligence claims if they fail to take these environmental trends into consideration. If the standard of care is evolving to require resilient designs, why are design professionals designing only to code?
One main reason is the increased cost to meet anticipated climate changes. The cost of construction will most likely increase with sustainable and resilient designs. Design firms need to educate project owners on the need for, and benefits of, resilient designs. According to the US Chamber of Commerce, every $1 invested in resilience saves $13 in economic impact, damage, and cleanup costs.[iv] While the building owner will benefit long term from this type of design, will project owners and developers be willing to spend the additional costs necessary to exceed current codes?
If project owners are not willing to build above code, firms will need to protect themselves from future claims by either walking away from the project or by adding additional language in their contract for the owner to indemnify the design firm for their decision to not build to a higher level of resilience. Regardless of decisions made by the project owner, design professionals still have an obligation to meet the prevailing standard of care. And based on an environmental perspective, the standard of care is increasing.
We are very passionate about helping firms we work with avoid risk. There are many resources available to help your firms navigate this changing and challenging environment (no pun intended). Please reach out to us if you have any questions or would like to have a conversation on this topic. We will also be presenting on this subject at the upcoming FES|ACEC-FL Annual Conference in Marco Island on Friday, August 1st.
Sources
[i] https://www.noaa.gov/news/2024-was-worlds-warmest-year-on-record
[ii] https://www.climate.gov/news-features/blogs/beyond-data/2024-active-year-us-billion-dollar-weather-and-climate-disasters
[iii] https://ejcdc.org/engineering-firms-compliance-with-fema-flood-standards-as-a-defense-to-subsequent-negligence-claims-alexander-v-the-woodlands-land-development-company-united-states-district-court-for-the/
[iv] https://www.uschamber.com/assets/documents/USChamber_AllState-2024-Climate-Resiliency-Report.pdf