N.J. Model Civil Jury Charge 5.52

5.52 PROFESSIONAL LIABILITY OF AN ARCHITECT/ENGINEER

(Approved 11/95)

A. General Duty Owing

In this action plaintiff contends that defendant was negligent because he/she

did not comply with the standard of car e that the law imposes upon him/her while

performing the work of his/her contract with __________________. Plaintiff

contends that as a result of defendant's negligence plaintiff suffered injury for which

damages are sought.

To decide this case properly you must know the standard of care imposed by

law against which defendant's responsibilities as an architect should be measured.

An architect represents that he/she has and will use the degree of knowledge,

skill, judgment and taste ordinarily possessed and used by the average architect in the

profession.1 Further, the architect’s conduct must be measured by the standard

architectural practice, in the same or similar communities, at the time the architect

was performing his/her services. Thus an architect has the duty to have and to use

that degree of judgment, knowledge, skill a nd taste which architects of ordinary

ability possess and exercise, in the same or similar communities, at the time the

1 This charge is equally appropriate for othe r design professionals, such as: engineers, land

surveyors, professional planners, etc. However, the term “taste” would be deleted from the standard

applicable to professional engineers and other non-aesthetically oriented design professionals.

architect performs his/her services. This is the standard by which to judge the

architect in this case.

The law does not expect or require pe rfection. Unsatisfactory results, alone,

are not necessarily evidence of lack of skill or proper care. Thus, if you find that the

architect has exercised that degree of knowledge, skill, judgment and taste which is

possessed and used by the average archit ect, you may not find him/her liable for

negligence even though unsatisfactory results may have occurred.

Further, where, according to standard architectural practice, the work involves

matters to be subjected to the judgment of the architect, the architect is allowed to

exercise that judgment. An architect is not liable if, in the exercise of that judgment,

in accordance with accepted standard, a bad result occurs. If in the exercise of his/her

judgment an architect selects one or two or more courses of action, each of which

under the circumstances has substantial support as proper practice in the architectural

profession, the architect is not negligent even if the course chosen produces a poor

result.

However, an architect who departs fro m standard architectural practice cannot

excuse himself/herself from the consequences by stating it was an exercise of his/her

judgment. If the exercise of an architect's judgment causes him/her to do that which

standard architectural practice forbids, he/she is negligent. Similarly, an architect is

negligent if his/her judgment causes hi m/her to omit doing something which under

the circumstances is required by standard architectural practice.

Simply stated, then, the obligation or duty which the law imposes on an

architect is to bring to his/her client that knowledge, skill, judgment and taste

ordinarily possessed and exercised in sim ilar situations, in the same or similar

communities, in his/her field at the time of the undertaking. If you find that the

defendant has complied with this standard, he/she is not liable to the plaintiff,

regardless of the result of his/her work. On the other hand, if you find that the

defendant has departed from this standard of care, and that such departure has resulted

in injury or damage, then you should find the defendant liable for his/her negligence.

Cases:

For a definition and discussion of th e scope of the duties owed by an

architect to his/her client, see Sykes v. Propane Power Corp., 224 N.J.

Super. 686 (App. Div. 1988); Walker Rogge, Inc. v. Chelsea Title and

Guar. Co., 222 N.J. Super. 363 (App. Div. 1988), aff’d, 116 N.J. 517

(1989); Restatement (Second) of Torts, Section 299A (1975);

Bloomsburg Mills v. Sordoni Construction Co., 164 A.2d 201, 203 (Pa.

1960); Bonadiman-McCain, Inc. v. Snow, 6 Cal Rrtr. 52, 60 (Cal App.

1960); Paxton v. Alameda Cty., 259 P.2d 934 (Cal. App. 1953); Chapel

v. Clark, 76 N.W. 62 (Mich. 1898); Coombs v. Beede, 36 A. 104, 104-

105 (Me. 1896). With respect to the f act that an architect is not an

insurer, guarantor or warrantor of a perfect result, see Wills v. Black &

West Architects, 344 P.2d 581 (Okla. 1959); Major v. Leary, 268 N.Y.S.

413 (App. Div. 1934).

B. Expert Testimony to Prove Standard of Care 2

Negligence is conduct that falls below a standard of care required by law for

the protection of persons or property from foreseeable risks of harm.

In a suit against an architect, jurors normally are not qualified to supply the

standard of care by which to measure th e defendant's conduct. Based upon their

common knowledge alone, without technical training, jurors usually cannot know

what conduct constitutes standard architectural practice. Therefore, ordinarily, when

an architect is charged with negligence, the standard of practice by which his/her

conduct is to be judged must be furnished by expert testimony; that is to say, by the

testimony of persons who by knowledge, training or experience are deemed qualified

to testify and to express their opinions on standard architectural practice.

As jurors, you should not speculate or guess about the standards which the

average architect should follow. In a case such as this, you as jurors must determine

what is standard architectural practice from the testimony of the expert witnesses who

have been heard in this case. After hearing such testimony and deciding what

standard architectural practice is in the circumstances of this case, you as jurors must

then determine whether the defendant has complied with or wh ether defendant has

2 If the failure of the architect’s performance is so clear that professional negligence may be found

without the aid of expert testimony, this instruction is unnecessary.

departed from that standard of care. If you find that the defendant has complied with

this standard, he/she is not liable to the pl aintiff, regardless of the result of his/her

work. On the other hand, if you find that the defendant has departed from this

standard of care, and that such departure has resulted in injury or damage, then you

should find the defendant liable for his/her negligence.

Cases:

If the failure of the architect's performance is so clear that professional

negligence may be found without the addition of expert testimony, this

instruction is necessary. As to th e necessity of expert testimony in

architectural malpractice cases, see Walker Rogge, Inc. v. Chelsea Title

and Guar. Co., 222 N.J. Super. 363 (App. Div. 1988), aff’d, 116 N.J.

517 (1989); Covil v. Robert & Co., Assoc ., 144 S.E.2d 450 (Ga. App.

1965); Pittman Construction Co. v. City of New Orleans, 178 So.2d 312

(La. App. 1965); Paxton v. Alameda Cty ., 259 P.2d 934 (Cal. App.

1953).

C. Common Knowledge May Furnish Standard of Care

Negligence is the failure to comply with the standard of care required by law to

protect a person from foreseeable risks of harm. Negligence in an architect's practice

is the architect's failure to comply with the standard of care required by law in the

performance of his/her duties. Usually it is necessary to establish the standard of care

by expert testimony, that is, by testim ony of persons who are qualified by their

training, study and experience to give their opinions on subjects not generally

understood by persons who lack such special training or experience. In the usual

case, standard architectural practice by which to judge defendant's conduct cannot be

determined by the jury without the assistance of expert testimony.

However, in some cases, such as the case at hand, the jury may determine from

its common knowledge and experience the standard of care by which to judge

defendant's conduct. In this case, plaintiff contends that defendant violated the duty

of care he/she owed to plaintiff by doing ______________/by failing to do

______________. In this case, therefore, it is for you, as jurors, to determine, based

upon common knowledge and experience, what skill and care the average architect

would have exercised in the same or similar circumstances. It is for you as jurors to

say from your common knowledge and experience whether defendant did something

which the average member of his/her pr ofession would not ha ve done or whether

defendant failed to do someth ing or failed to take some measure that the average

member of his/her profession would have done or taken in the circumstances of this

case.

NOTE TO JUDGE

Where there has been expert architectural testimony as to the standard of

care but the standard is one which can also be determined by the jury

from its common knowledge and experience, the jury should determine

the standard of care after consider ing all the evidence in the case,

including the expert architectural testimony, as well as its own common

knowledge and experience.

After determining the standard of care required in the circumstances of this

case, you should then consider the eviden ce to determine whether defendant has

complied with or departed from that standard of care. If you find that defendant has

complied with that standard, he/she is not liable to the plaintiff, regardless of the

result of his/her work. On the other hand, if you find that the defendant has departed

from that standard of care, and that such departure has resulted in an identifiable

injury or damage, then you should find defendant liable for his/her negligence.