MA Appellate Courts Issue Two Important Decisions Impacting Professional Liability Claims
Architects, engineers, and other design professionals should take note of two recent Massachusetts opinions which underscore the need to consider the complexities professionals face when evaluating supposed errors in judgment, and whether those errors even caused harm. The first, Doull v. Foster, SJC 12921 (February 26, 2021), eliminated the confusing “substantial contributing factor” test in favor of adopting the “but for” standard for proximate causation. This requiring plaintiffs prove their harm would not have occurred “but for” the defendant’s conduct. The second, Paiva v. Kaplan, Mass. App. Ct. 19-P-1789 (May 28, 2021), notes that “all professionals […] make judgment calls between various courses of action” and mere errors in those calls are not necessarily negligent. Instead, the jury should focus “on the standard of care, rather than the particular results.”
Although both cases concerned medical malpractice, the principles concerning the standard of care assessment apply to all specialized professionals, including architects and engineers. Owners and contractors on construction projects often claim that a design professional’s inferred information, post-bid design development, or submittal cycle contributed to delays, defects, or increased costs. However, the question is not whether these normal design issues were a factor, but whether the problems would not have occurred “but for” such issues. Often, the answer is “no,” and the contractor’s methods or owner’s directives may be the most “proximate” cause. Similarly, design professionals must make hundreds of decisions using their best judgment on even the simplest project, based on incomplete information. Owners may cry “negligence” if those decisions do not pan out, but that does not make it so. To avoid litigation, all parties to construction projects should consider factors such as inevitable, non-negligent errors early on and plan accordingly with sufficient contingency. As Paiva and Doulla make clear, the law does not require the professional bear these costs.