This intriguing issue was recently addressed by attorneys Elena Mihaly, William Franczek, and Andrew P. Selman in an article published in the summer 2018 issue of the Journal of the American College of Construction Lawyers. Their article was also part of a larger study, Climate Adaptation and Liability: A Legal Primer and Workshop Summary Report. The article is a primer on theories of legal liability that could come into play if a design professional causes harm by failing to adequately undertake climate adaptation measures.
According to the authors, the prevailing (but not necessarily the safest) practice is to design and build according to the climate patterns of the past rather than those observed in the present or anticipated imminently. They claim that knowledge of climate change impacts could be used to establish a legal duty. For example, if publicly available storm surge maps indicate that a structure could flood during the lifespan of a building, a design professional has a duty to build the project to withstand the flooding, or at least inform the client of the issue (at Schinnerer, we would also encourage documentation of the latter conversation). In addition, a design professional could be found liable for designing a project based on maps that the design professional knew or should have known misrepresented risks, given climate projections.
Negligence and the standard of care
To be found liable for negligence, the injured party must establish that the party causing the harm breached a duty that was owed and that the breach resulted in damages. The duty owed by a design professional is often referred to as the “standard of care.” The standard of care is defined as the skill and care used by members of the same profession practicing under similar circumstances at the same time and in the same locality. Meeting the standard of care varies depending on the location. For example, design professionals in coastal cities should consider rising sea levels and increased flooding in their designs, while design professionals in the Midwest may need to account for increases in snow and tornadoes.
Prudent design professionals should therefore discuss with their clients the level of due diligence required to determine the appropriate design standards for climate resilience. They may need to research weather data and projections as well as climate impact maps and models, and may also want to retain climate experts to determine the accuracy of climate data, including flood or storm surge maps, and regional climate vulnerability studies.
Code compliance and foreseeable harm
Complying with existing zoning, building codes, and other regulations will not necessarily by itself shield a design professional from liability. In 2016, the National Oceanic and Atmospheric Administration (NOAA) stated, “Building codes are based on historical data and do not reflect future risks, including the impacts of climate change.”
While the prevailing industry custom may provide guidance in establishing the professional standard of care, there is no guarantee that the common industry practice will meet the scrutiny of the courts, especially if the practice ignores an available and reliable means to avoid a safety risk. The authors cite the case of T.J. Hooper that involved a tugboat that lost its cargo because, just like other tugboats, it did not have a radio that would have advised of impending storms. The court stated that “universal disregard will not excuse their omission.” The T.J. Hooper, 60 F.2d 737, 737, 1932 A.M.C. 1169 (C.C.A. 2d Cir. 1932).
Thus, design professionals can also be held responsible if the harm that occurred was foreseeable. For climate change risk, the event need not have actually happened in the past for a court to find that it was foreseeable. For example, if high winds can be predicted with existing technology, the fact that high winds at a particular location never occurred before might not protect a design professional from liability if something they designed incurs wind damage.
Contractual provisions may also increase a design professional’s exposure to claims related to climate change. Read professional services agreements carefully, paying special attention to increased standards of care or scope of services. If a contract requires the design professional to design a storm water system that can handle a designated storm size, and the system is built below that capacity, the design professional could be subject to a breach of contract claim.
Even standard form agreements, such as AIA and EJCDC documents, contain provisions that may affect the standard of care. For example, AIA document B103-2017 (Standard Form of Agreement Between Owner and Architect for a Complex Project) allows the owner to identify sustainable objectives for the project. This provision creates additional possible liability for an architect because of increased responsibilities in an area where the effects of climate change may be especially relevant. In EJCDC document E-500 (Standard Form Agreement Between Owner & Engineer for Professional Services), the engineer’s services are outlined in Exhibit A, which allows the owner greater flexibility to include accountability for climate change. If the owner retains the engineer to provide additional services, such as reviewing environmental assessments and impact statements and obtaining government approvals for the anticipated impact, the engineer has additional exposure.
Schinnerer recommends that design professionals:
- Review contracts carefully to avoid express warranties and guarantees. Understand the scope of services requested and any specific standards required.
- Pay special attention to applicable codes and regulations.
- Manage client expectations. Document all recommendations and your client’s responses, including your client’s informed consent.
- Limit your liability for consequential damages related to certification, energy, water use, or other attributes of green design.
- Stay current on what sustainability means. As this article indicates, green design risks are evolving and the law is unsettled.
For more information on designing sustainable projects, visit the Schinnerer School of Risk Management. Here are two of several articles available exclusively to our policyholders about managing the risks of sustainable design: