Standard of Care Reviews

A Standard of Care within the construction industry may be generally defined as a level or degree of care that a party exercises in discharging its responsibilities. Howard W. Ashcraft, Jr. in his article “Standard of Care in Professional Liability Action,” discussed the definition of Standard of Care based on the Book Approved for Jury Instruction:[1]

The standard jury instructions for professional malpractice actions contain the traditional definition of standard of care.

In performing professional services for a client, defendant has the duty to have that degree of learning and skill originally possessed by reputable engineers practicing in the same or a similar locality and under similar circumstances.

It is his or her further duty to use the care and skills originally used in like cases by reputable members of his profession in the same or a similar locality under similar circumstances, and to use reasonable diligence and his or her best judgment in the exercise of his or her professional skill and in the application of his or her learning, in an effort to accomplish the purpose for which he or she was employed.

A failure to fulfill any such duty is negligence.[2]

The reason that an owner seeks a company, such as Pegasus-Global, with our professionals having specialized skills to perform certain contractually required services is to provide assurance to the owner that the company being retained will perform its services to a level of skill that would be expected of that particular profession. A Standard of Care is typically applied to persons and professions or trades requiring special skills. As defined in the Design Professional and Construction Manager Law treatise published by the American Bar Association Forum on the construction industry:[3]

As a general rule, when a person holds himself out to the public as a member of a particular profession or trade, there is an implied agreement with those who employ him that he (1) possess that degree of knowledge and skill ordinarily possessed by others in the profession or trade, and (2) will perform the services for which he was engaged with that degree of prudence and care ordinarily possessed and observed by others engaged in the same or like employment…The construction manager has a duty to exercise ordinary skill and competence as exhibited by other construction managers.  A failure to discharge that duty may subject the construction manager to liability.

It is common within the construction industry for contract agreements to include a Standard of Care provision which sets the degree of care that must be exercised by the party engaged to provide services. But too often Owners find that the engineers, Program Managers, EPC or the EPCM Contractors that have been retained appear not to have met the expected industry standard of care resulting in significant cost or schedule overruns. Pegasus-Global can assist you in determining whether or not those you have retained to meet an industry Standard of Care have met that burden and if not, what your options are for pursuing potential monetary damages suffered.



Notes

[1] February 2002, Howard W. Ashcraft, Jr. from Hanson Bridgett, Marcus, Vlahos & Rudy, LLP-Standard of Care in Professional Liability Actions: A Guide for Design Professionals.

[2] 6.37, Book of Approved Jury Instructions (B.A. J.I. 8th Ed).

[3] Design Professional and Construction Manager Law, Editors S. Hess, J. Bales, P. Folk, L.T. Holt, American Bar Association Forum on the Construction Industry, Chapter 8, page 255.