Unless you put yourself out there as perfect, courts will typically hold you to the standard of reasonable care if you make a mistake.
What is an “Exact Science?” Merriam-Webster’s dictionary defines “exact science” as “a science (such as physics, chemistry, or astronomy) whose laws are capable of accurate quantitative expression.” Some say that the exact sciences (also known as “hard sciences”) are those that don’t require you to figure out human psychology, that is a scientific field which deals with things that can be observed and measured. One Georgia case stated that, “Science generally means possessed of knowledge as distinguished from ignorance and specifically points to truths or laws that may be experimentally demonstrable and empirically tested.”
It may be easier to list those professions that courts have found not to be an exact science (i.e., an “inexact science”). In a 1985 case, the U.S. Supreme Court stated that, “Psychiatry is not, however, an exact science.” Other courts have held that medicine, law, psychology, geology, hydrology, real estate appraisal, and even taxation are not exact sciences. As one court put it: “A plaintiff must prove the defendant failed to give him, not the highest degree of care, but merely the reasonable care and skill usually possessed by physicians of the same school … A physician is not an insurer of the results of his diagnosis or procedures. He is obliged to conform to the accepted standard of reasonable care, but he is not liable for failing to exercise an extraordinary degree of care.”
That same court warned, however, that those who hold themselves to a higher standard of care might find themselves liable for breach of that higher standard. The court stated, “True, physicians too often have attempted to encourage the aurae of an infallibility they do not possess. Theirs is not an exact science, and even the very best of them can be wrong in diagnosis or procedure. … [But] members of the medical profession who have held themselves out to be supermen should not be surprised that laymen take them at their word and impose superdamages.” The court went on to explain, however, that the law “recognizes the medical profession for what it is, a class of fallible men, some of whom are unusually well-qualified and expert and some of whom are not. The standard to which they must conform, however, is determined by the practices of neither the very best nor the worst of the class. Like automobile drivers, engineers, common laborers, and lawyers, they are obliged to conform to reasonable care in the circumstances.”
In short, most professionals are held to a standard of care that recognizes that mistakes can be made, and that in and of itself is not negligence. A physician, nurse, lawyer or real estate appraiser must act with that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field.
Is Architecture or Engineering an “Exact Science”? While there are unique cases on both sides of this issue, the prevailing view is that architecture and engineering are not exact sciences. Two older 1933 cases from Alabama and Louisiana found that, “Engineering is for the most part an exact science,” but that is not the prevailing view today. The leading case on architects and engineers as “inexact sciences” is a 1978 Minnesota case, City of Mounds View v. Walijarvi. In that case, the Minnesota Supreme Court held that, “Architects, doctors, engineers, attorneys, and others deal in somewhat inexact sciences and are continually called upon to exercise their skilled judgment in order to anticipate and provide for random factors which are incapable of precise measurement. The indeterminate nature of these factors makes it impossible for professional service people to gauge them with complete accuracy in every instance.”
Comparing design professionals to doctors and lawyers, the court said, “Thus, doctors cannot promise that every operation will be successful; a lawyer can never be certain that a contract he drafts is without latent ambiguity; and an architect cannot be certain that a structural design will interact with natural forces as anticipated.” The court noted that because of “the inescapable possibility of error which inheres in these services,” the law has traditionally required, not perfect results, but rather the exercise of that skill and judgment which can be reasonably expected from similarly situated professionals.
Citing to the Mounds View case, a Massachusetts court held in 1982 that, “Moreover, unlike a mass producer of consumer goods, an architect has but a single chance to create a design for a client which will produce a defect-free structure. Accordingly, we do not think it just that architects should be forced to bear the same burden of liability … as that which has been imposed on manufacturers generally.” In other words, no strict liability, no implied warranty and no guarantee of perfection. A 2001 Utah case also cited to Mounds View stating, “We hold that architects and design professionals do not impliedly warrant or guarantee a perfect plan or satisfactory result.”
In a 1984 New York case, an architect prepared a cost estimate for a building which was relied on by the project owner. Bids on the project were from 33 to 45 percent above the architect’s estimates and the owner sued. An expert witness testified for the owner that the variance of cost estimates from bids was normally within a range of from 10 to 15 percent. However, the same witness also testified that “estimating is an inexact science at best,” that many factors have an influence on the compilation of bids, and that architects have no control over competitive bidding or the market and negotiating conditions. As a result, the court found the architect was not negligent, noting that “The fact of the unexplained, substantial discrepancy between defendant’s projection of cost and the actual bids neither was proof of negligence by defendants nor did it permit an inference of negligence.”
How about surveyors? Don’t they deal in exact metes and bounds in measuring specific distances between points on the land? Not necessarily. As one 1915 case stated, “Although surveying is theoretically an exact science, it is well known that there is often a great difference in the work of surveyors when laid out on the ground; this because of inaccurate readings or the negligence or incompetence of many engineers.”
But, there can be exceptions. Such an exception can be found in an odd 1984 Kansas case in which an architect breached an oral contract to supervise the grading work and to check the grades on completion “to insure their accuracy.” The court noted that, “Though professionals are liable for malpractice for breach of a legal duty, that does not preclude them from contracting to perform a duty higher than the one imposed by law.” In this case, that is what the architect did, by agreeing to insure the grading to be accurate.
Here, the Kansas Supreme Court held that, “it can be said certain professionals, such as doctors and lawyers, are not subject to such an implied warranty. However, an architect and an engineer stand in much different posture as to insuring a given result than does a doctor or lawyer. The work performed by architects and engineers is an exact science; that performed by doctors and lawyers is not. A person who contracts with an architect or engineer for a building of a certain size and elevation has a right to expect an exact result.” It is often said by lawyers that “bad facts make bad law” and, fortunately, no other state has followed the Kansas case in the past 35 years, since it is “bad law” based on some very bad facts.
Am I insured? Professional liability insurance policies insure for professional negligence, not for perfection. In fact, most policies contain an exclusion for “express warranties or guarantees.” That means if you make a guarantee and contract for a higher standard or for perfection, as the one court noted, “supermen should not be surprised that laymen take them at their word and impose superdamages.” And you may not be insured, either!
Moral of the story? Architects and engineers deal in “inexact sciences,” and are not held to a standard of perfection.
But, like the Kansas architect who gave an oral promise of an exact result, loose lips can sink ships or, in your case, sink your firm. Don’t be Superman, or Superwoman. Resist contracts that attempt to hold you to that higher standard.
William Quatman, FAIA, Esq., is general counsel and senior vice president at Burns & McDonnell Engineering Co. He can be reached at firstname.lastname@example.org.