The Architect May Have Liability Too
PcM - Section 1, Objective 3 (Architect liability)
CE - Section 2, Objective 1 (Architect liability)
This question comes up regularly.
On a routine site visit an architect witnesses an unsafe condition. What to do?
I often hear, “Say nothing, because of the architect’s potential exposure to liability.” Seems like a safe approach, but is this really what it’s come to? Not only is the “say nothing” response morally suspect, it’s arguably a violation of more than one standard in the architect’s Code of Ethics and Professional Conduct. Furthermore, according to Law for Architects: What You Need to Know (an NCARB reference for ARE 5.0), “…you can still be held liable if you actually observe or know about a dangerous condition or practice at a jobsite and fail to warn about it, in the event that condition or practice later causes an injury…”
The architect is required to act reasonably. Of course, without some additional context, it’s impossible to know what a “reasonable person” might do. But the answer is clearly not, “nothing.”
Here are some examples.
Say there’s a board laying on the ground. A nail is sticking out where someone could step on it. A relatively minor concern, right? It happens all the time.
But, imagine an extreme scenario in which someone is in imminent danger; a falling beam, or a truck backing up toward a worker. “Say nothing”? Really? I hope somebody would at least give me a “heads up."
The scenario for an ARE 5.0 question is likely to be somewhere between these two extremes. Say, improperly stacked material is at risk of falling over on the job site. It’s true that the architect should not advise the contractor regarding means and methods, or workplace safety. But a reasonable action is to tell the contractor that the material is about to fall over, whereas suggesting that the contractor secure it with duct tape is not. Inform, don’t advise.
While the architect is not obligated to look for unsafe conditions if one is found during a site visit (the execution of the architect’s services), the architect is obligated to do something, and that includes notifying the contractor, the owner, or a public official who deals with safety issues. So, if someone gets hurt and it comes out that you, the architect, were aware of the danger and did nothing, you’re now exposed to a whole new liability. And you don’t want that.
A Familiar ARE 5.0 Debate – AIA A201
CE - Section 4, Objective 1 (AIA A201-2007)
The punch list. Who provides it?
The short answer:
The contractor. Why? Because it says so in AIA A201-2017™, General Conditions of the Contract for Construction.
The long answer:
The actual practice of architecture often diverges from how AIA A201-2017 says it’s supposed to work. For answering exam questions, this is a recipe for the confusion that is often reinforced by those who should know better.
Just so we’re all working from the same set of facts, AIA A201-2017 § 9.8.2 says:
“When the Contractor considers that the Work…is substantially complete, the Contractor shall prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to final payment…”
So why is this up for debate? Here are just two reasons:
1. In Law for Architects: What You Need to Know (an NCARB reference for the ARE, BTW), on page 35 it says:
2. In the ARE 5.0 NCARB Handbook on page 149, sample item 7 offers a scenario where an architect has clearly provided a punch list:
"The architect inspected the work and prepared the following list of incomplete work."
A third reason? Maybe in your office, it’s just customary for the architect to provide the punch list.
Yes, the architect’s responsibilities include reviewing the punch list and providing input, but it’s the contractor’s job to generate it. Here’s the point. On ARE 5.0, NCARB wants you to answer questions based on what it says in the contracts, the way the AIA thinks architecture is supposed to work.
AIA Document A201-2017. Spoiler. It’s the Owner.
Division: Construction and Evaluation
Section 3: Administrative Procedures & Protocols (32-38%)
Objective 4: Evaluate responses to non-conformance with contract documents
During a routine inspection to determine if the sandwich is substantially complete, the architect suspects that the contractor used chunky peanut butter instead of smooth as required by the specifications. In accordance with AIA Document A201-2017, General Conditions of the Contract for Construction, the architect requests to see the peanut butter. The contractor disassembles the sandwich, which exposes smooth peanut butter.
Who pays for uncovering the peanut butter and reassembling the sandwich?
According to AIA Document A201-2017, Article 12, Uncovering and Correction of Work, because the correct type of peanut butter was used, the contractor is entitled to an appropriate adjustment of the Contract Sum and Contract Time.
"Section 12.1.2 If a portion of the Work has been covered that the architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, the Contractor shall be entitled to an equitable adjustment to the Contract Sum and Contract Time as may be appropriate."
However, if the work was not in accordance with the contract documents, the contractor is responsible for the cost of uncovering and correcting the Work.
Section 12.1.2 (continued) "If such Work is not in accordance with the Contract Documents, the costs of uncovering the Work, and the cost of correction, shall be at the Contractor's expense."
While the architect’s reputation pays a steep price for the mistake (and for specifying smooth peanut butter when everyone knows that chunky is superior) the cost of uncovering the peanut butter and reassembling the sandwich is at the owner’s expense.
A perfectly impractical solution provided by S Surface via The ARE Facebook Group
ARE 5.0 Practice Exams – How To Use Them Wisely.
There’s a ton of ARE 5.0 practice exams out there. But, a solid test question is hard to write. With the help of psychometricians, NCARB relies on an army of volunteers to write, review, revise, and test ARE exam questions before they’re unleashed on candidates. The fact that candidates still have issues with NCARB’s exam questions is evidence of the writing challenge. I’d argue that no third-party ARE 5.0 practice exam questions have been as thoroughly vetted, and forget about accurate levels of cognitive complexity. So proceed with caution. Research supporting an increase in exam scores after taking multiple practice tests is measured using actual exams, no longer in use, for practice. NCARB does not release deprecated exam forms, just the exam simulator.
When we talk about the value of an ARE 5.0 practice exam, passing or failing does not indicate your exam readiness, nor is it about getting the right answer. The value is gaining insight into potential ARE 5.0 exam topics and assessing how well you understand them. And to determine whether you fully grasp a concept, you'll more than likely have to do some additional homework.
ARE Practice Test Questions
Let’s examine just one of the many practice questions that have vexed ARE candidates lately. Here’s a screen capture from a practice test promotional video (by a well-known company). Remember, this is not to bash the writer. Again, it’s not easy. Take a shot at answering this question?
(Scroll for the answer)
Below is their answer, (A), along with a few mortar joint examples.
In the video, here’s how they justify the answer:
Eliminate answer choices C and B right off the bat:
(C) accept the change, because there is no practical way to modify troweled joints.
Rationale: The architect shouldn’t accept inferior work.
(B) accept the change, because there is little difference in the two joints.
Rationale: There’s clearly a difference [in weather resistance] between the two joints.
(We’ll get to the “two joints” in a minute.)
That leaves us with answer choices D, or A.
(D) reject the work and have the mason trowel additional mortar over every horizontal joint.
Rationale: While there is some “practicality” to this solution, it’s not enough to justify accepting inferior work.
According to the video, (A) is the correct answer.
(A) reject the wall and have it rebuilt.
Rationale: Even though it doesn’t seem “practical,” this is the only/most correct answer [because the wall will fail prematurely, the architect should not accept inferior work or the increased liability, the mason’s work doesn’t match the construction documents or meet the owner’s expectations].
The Practice Test Problem
If you picked the right answer, congratulations. If not (or if you just couldn’t choose), don't get tangled up trying to justify one answer choice over another. The answer choices are irrelevant because the question itself is flawed.
Using accurate terminology in ARE 5.0 practice exam questions is important. In this case, it’s vital. So, this isn’t just an exercise in semantics and pettiness. Choosing the “correct” answer hinges on knowing the difference between “troweled” and “weather-struck,” and how well they protect an “exposed exterior masonry wall” from the damage of the freeze-thaw process.
“a mason has used troweled joints…instead of the weather-struck joints that were specified.”
Remember their rationale for why answer choice B is wrong?
“There’s clearly a difference between the two joints.”
The problem is that “troweled” and “weather-struck” are not two different kinds of joints.
“Troweled” is a method of making various types of joints, by using a trowel, one of which is a “weather-struck” joint. Look at the image atop this blog post. The mason is using a trowel to make a weather-struck joint.
They’re comparing apples to oranges.
There’s a lot going on here, so let’s break it down. Generally, there are two types of mortar joints; troweled, and tooled.
In a troweled joint, the mortar is shaped by cutting off the excess with the edge of a trowel. Note that the joints the rationale calls “trowel struck,” “flush,” and "weather-struck” are formed using a trowel.
In a tooled joint, a special tool is used to compress and shape the mortar in the joint, which makes the joint more weather resistant.
Now, let’s take a closer look at their rationale. Notice the “trowel struck” and the “weather struck” joints. They show these two joints to illustrate that one joint sheds water better than the other, which is true.
The thing is, the construction industry uses different terminology to describe joints, how they’re formed, and their weather resistance. For example, what their rationale image calls “trowel struck” (below left) is typically called, “struck.” On the right are just a few examples from a Google search.
Their use of the term “trowel struck” muddies the waters. But that’s not the most troubling part. Again, the question states:
“a mason has used troweled joints…instead of the weather-struck joints that were specified.”
But, a “weather-struck joint” is a type of "troweled joint!"
This is a long way of saying, because the terminology isn’t quite right, it’s impossible to match a correct answer choice to the question.
So, is this ARE practice test question useless? If you are using it to predict your performance on ARE 5.0, yes. If you consider this practice test question to be a “thing to know” and then research it, the answer is no. By investigating the topic, I got a quick refresher on joint types, their effectiveness, and much more. And that’s the point. Think of ARE 5.0 practice exams as a guide for topics you should understand. Then study those topics.
Your practice test score is not a measure of your readiness to test. If you insist on taking ARE 5.0 practice exams, keep in mind that those questions don’t get nearly the same scrutiny as actual ARE test questions, and this example is no different. Remember, it only takes one word to derail what might otherwise be a solid ARE practice question. As I said, they’re hard to write.
Statute of Repose vs. Statute of Limitations
WTF is the difference? Inquiring minds want to know.
There’s a lot of confusion regarding Statute of Repose vs. Statute of Limitations. One reason is each state sets its own limitations as to the start date, the duration, and the end date. Furthermore, these change over time, as each state sets a new precedent and updates the law. There is no absolute time limit for each statute, they both generally vary from 1-10 years depending on the state, and there isn’t one specific date the clock starts ticking on the repose period. Although each statute’s purpose is consistent, the interpretations, types of claims, and rules vary across the country. For example, New York does not have a statute of repose for construction, and Vermont’s only applies to condominiums.
Statute of Repose
Statute of Repose is a time limit imposed by law (time varies by state) within which a claim/cause of action can be filed against the person(s) who performed the services (architect, designer, contractor). It starts on a specified date, usually the date of substantial completion, date of occupancy, or receipt of the Title. Usually, the time limit is ten years but varies significantly among states. If both parties agree, they can specify an alternate time limit for either statute in their contract. However, the agreed-upon statute is overruled if the time limit is deemed unreasonable by the court.
For example, if a client discovers a defect in the work and wants to sue for damages, they can bring a suit within the statute of repose - let’s say ten years. If something happens in year eleven, it is too late, and a suit cannot be brought. The time is up.
Statute of Limitations
Statute of Limitations is a time limit imposed by law that falls within the statute of repose. A claim/cause of action can be filed against the person(s) who performed the services (architect, designer, contractor). The time starts when an occurrence is discovered or should have been discovered, or when the damage occurs. The state determines the time limit and is shorter than the statute of repose – 4, 6, 8 years. The statute of limitations expires on the same date as the statute of repose if no claim is filed.
For example, suppose the statute of repose is ten years, and the statute of limitations is six years. In that case, if damage occurs or is discovered in year five, five years remain, not six (the duration of the statute of limitations), in which to file a claim before the statute of repose ends. If the statute of limitations is nine years, and the damage occurs or is discovered in year eight, one year remains to file a claim before the statute of repose expires. The legal battle may extend beyond the statute of repose once a lawsuit is filed.
In Simpler Terms
Statute of Repose starts at a predetermined time–substantial completion, certificate of occupancy, receipt of the Title (varies by state).
Statute of Limitations starts at the occurrence of an injury or damage or the time it is discovered by the claimant.
Let's Breakdown the History
In the mid-1960s, architects/contractors were liable for the life of the building because a statute of repose did not exist. They put pressure on states to adopt a time limit on their liability. Slowly, states began to enact their own laws, though they were vague and varied more significantly than they do today. Therefore, the AIA adopted provisions limiting the architect’s exposure to liability, imposing their own statute of limitations and repose in the contracts' 1987 and 1997 editions. Owners complained that the wording in the contracts limited their remedies and unfairly benefitted the architect. In 2007, enough states had adopted a statute that AIA dropped the provisions.
Since the 2007 edition, the AIA contracts defer to the limits established by applicable law. Therefore when discussing the statute of limitations and the statute of repose you must look to the state to understand the applicable limits. Although you can modify the contract and set agreed-upon limits that differ from the state a court could choose to ignore those contract limits if they deem them unreasonable.
Let's Breakdown the Contracts
In AIA B101-2017, Standard Form of Agreement Between Owner and Architect, Article 8.1.1, the wording still tries to limit the statute of repose to 10 years, which is already the maximum in most states. In essence, the wording is there as a “just in case” scenario and may not hold up in court. Additionally, Article 8.1.1 refers to Substantial Completion as the date that starts the clock on the statute of repose. However, some states use the date of occupancy or the receipt of title. It is up to the court to determine if they will uphold the agreed-upon start date in the contract.
The same language appears in A201-2017, General Conditions of the Contract for Construction, Article 15.1.2. Additionally, the bold text in Article 220.127.116.11 defers to the laws in the state where a claim would be filed. A101-2017 Standard Form of Agreement between Owner and Contractor, Article 6.2 refers back to A201 and adds that a claim would be resolved in the court having jurisdiction.
§ 8.1 General
“§ 8.1.1 The Owner and Architect shall commence all claims and causes of action against the other and arising out of or related to this Agreement, whether in contract, tort, or otherwise, in accordance with the requirements of the binding dispute resolution method selected in this Agreement and within the period specified by applicable law, but in any case not more than 10 years after the date of Substantial Completion of the Work. The Owner and Architect waive all claims and causes of action not commenced in accordance with this Section 8.1.1.”
“§ 15.1.2 Time Limits on Claims
The Owner and Contractor shall commence all Claims and causes of action against the other and arising out of or related to the Contract, whether in contract, tort, breach of warranty or otherwise, in accordance with the requirements of the binding dispute resolution method selected in the Agreement and within the period specified by applicable law, but in any case not more than 10 years after the date of Substantial Completion of the Work. The Owner and Contractor waive all Claims and causes of action not commenced in accordance with this Section 15.1.2.”
A demand for arbitration shall be made no earlier than concurrently with the filing of a request for mediation, but in no event shall it be made after the date when the institution of legal or equitable proceedings based on the Claim would be barred by the applicable statute of limitations. For statute of limitations purposes, receipt of a written demand for arbitration by the person or entity administering the arbitration shall constitute the institution of legal or equitable proceedings based on the Claim.”
“§ 6.2 Binding Dispute Resolution
For any Claim subject to, but not resolved by, mediation pursuant to Section 15.3 Article 15 of AIA Document A201–2007, A201–2017, the method of binding dispute resolution shall be as follows:
Arbitration pursuant to Section 15.4 of AIA Document A201–2017
Litigation in a court of competent jurisdiction
If the Owner and Contractor do not select a method of binding dispute resolution or do not subsequently agree in writing to a binding dispute resolution method other than litigation, Claims will be resolved by litigation in a court of competent jurisdiction.”
One More Thing
As architects, the most important takeaway from the Statute of Repose vs. Statute of Limitations is understanding how far in the future you can be sued and how long you should maintain PLI on a project. Unfortunately, maintaining insurability can require an Extended Reporting Period (ERP) or Tails Coverage policy– we'll save that for another time.
It’s your turn!
(Ready to get serious?)