Section 8 Existence of Duty and Burden of Proof

• Library: Prof Liability 2005

Because design professionals often enter into contractual agreements for professional services to be rendered on a particular project, the terms and conditions of the contract are certainly relevant and probative of what the design professional is supposed to do under the circumstances. Claims are made against design professionals for breach of contract, but most actions brought against design professionals are based on a theory of negligence; consequently, traditional professional negligence law governs such actions. More specifically, in a negligence action against an architect or an engineer, the plaintiff has the burden of proof to establish that:

• the design professional defendant owes a duty to the plaintiff
• there has been a breach of that duty; and
• the breach of duty has caused injury or damage to the plaintiff

See Chubb Group of Ins. Cos. v. C.F. Murphy & Assocs., Inc., 656 S.W.2d 766 (Mo. App. W.D. 1983)

The design professional owes a duty to exercise that degree of skill, learning, and care ordinarily exercised and practiced by other design professionals under the same or similar circumstances of rendering services as a professional. The plaintiff must establish that the defendant design professional failed to comply with an appropriate standard of care. The standard or “benchmark” for determining whether there has been a deviation from the standard of care is the learning, skill, and care of other professionals under the same or similar circumstances. With respect to its clients, the design professional owes a duty to furnish plans with a reasonable degree of technical skill, and the performance of the design professional is viewed in terms of others who hold themselves...