The standard of care. Odds are, it has come up recently on most, if not all, of your design error and construction-defect cases—specifically, on whether the insured client met or breached their standard of care. Why? It is the focal issue for determining liability.
In the construction and design industries, the standard of care is the legal duty against which the client’s performance is measured. For contractors, the standard of care may be described as the “duty of workmanlike performance,” which is usually defined as how other good workers perform work on similar projects, in the locale, at the time the work was performed. For architects, for example, the standard of care is usually defined as whether the architect exercised reasonable care and diligence in the examination of the site and in the preparation of their plans and specifications.
The standard of care is context-dependent. It can vary by discipline—for example, architects, engineers, and contractors each have distinct duties, and those duties may vary depending on project phase, scope, and complexity. In other words, one standard does not apply to all professions and/or trades. The standard of care is not about achieving perfection, as many think, but rather is a measure of professional reasonableness. It reflects what a similarly situated design or construction professional would do under comparable circumstances. This principle is not just theoretical; it is central to how insurance professionals assess claims, as well as how forensic experts and attorneys evaluate the merit of allegations, assess responsibility, and resolve disputes. It is also the key issue that the jury will decide when it evaluates the client’s liability.
Definitions of standard of care vary widely, generally more so when it comes to plaintiff and defense positions, so to leverage the best outcome for the client the standard of care must be clearly defined and consistently referenced, especially when evaluating the client’s conduct.
The standard of practice, on the other hand, involves whether the client performed their work according to accepted or recommended procedures. Evaluating whether the client met the standard of practice involves whether they met or failed to meet standard procedures, anticipated or ignored foreseeable risks, performed recommended inspections, or deviated from the building code.
It is important to note that compliance with the standard of practice does not necessarily mean that the client met the standard of care. For this reason, this article explores the standard of care through two critical lenses:
- The forensic expert, who evaluates conduct with technical precision and scientific neutrality.
- The attorney, who interprets those findings within a legal framework to assess liability and risk.
Together, these perspectives offer a comprehensive understanding of how design errors and construction defects are classified, adjudicated, and resolved—and why the distinction between the standard of practice and the standard of care matters more than ever.
Forensic Expert Perspective: Technical Evaluation of the Standard of Care
The forensic sciences are rooted in scientific objectivity. Experts approach alleged failures with the same objectivity as a lab technician analyzing a specimen. Every observation must be documented; every conclusion supported by data. Adhering to the scientific method in performing analyses and developing opinions is crucial. The expert’s opinion hinges on whether the client acted within or outside the bounds of accepted reason[1]able behavior.
Approach and Methodology
Forensic experts begin by collecting and analyzing project documentation, including plans, specifications, inspection reports, and communication records. They compare design criteria and as-built conditions against industry standards, building codes, and manufacturer guidelines. They also physically examine the project and perform tests as prescribed by code and industry technical guidelines. The goal is to determine whether the client exercised reasonable care under the circumstances.
This process is inherently technical and impartial. Experts do not speculate on motives; they assess facts. A breach of the standard of care is found when there is a clear deviation from standard practice, especially when risks were known or foreseeable.
Real-World Examples
- Kansas City Hyatt Regency Walkway Collapse (1981). A tragic example of negligence, this collapse killed 114 people due to a design change in the walkway support system that was not properly reviewed. Forensic analysis revealed that the change doubled the load on the connection, violating basic engineering principles. The structural engineers failed to meet the standard of care by not performing adequate checks in which a prudent structural engineer in the same circumstances would have completed.
- Boston Big Dig Tunnel Ceiling Collapse (2006). A forensic investigation found that the epoxy used to secure ceiling panels was inappropriate for long-term structural loads. The selection of materials and lack of proper testing were deemed negligent. The expert analysis focused on whether the design and installation met the expected standards for safety and durability. Contractors who followed specifications outlined by the design professionals did not breach their standard of care.
- Millennium Tower Settlement Issues—San Francisco (2016–present). The sinking and tilting issues with this high-rise are well known by now, with forensic evaluations of soil conditions, foundation design, and peer review processes still underway. While some errors were attributed to limitations in geotechnical data, others—such as ignoring alternative foundation recommendations—raised questions of negligence.
These cases illustrate how forensic experts apply a black-and-white lens to technical failures. Their role is to clarify whether the conduct was within the bounds of professional norms, not to assign moral blame. Their findings often become the cornerstone of legal proceedings.
Attorney Perspective: Legal Implications and Liability
From the legal standpoint, the standard of care in design and construction is not merely a technical benchmark; it is a cornerstone of liability. Attorneys dissect whether a professional’s standard of practice aligns with what is reasonably expected of someone in their role— whether the standard of practice meets the standard of care—and this determination often hinges on forensic findings.
Legal Definition and Framework
In tort law, conforming to the standard of practice may meet the standard of care, but that is not always the case. As Judge Learned Hand explained almost 100 years ago: “[I]n most cases reason[1]able prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” [See The T.J. Hooper, 60 F.2d 737, 740 (2nd Cir.), cert. denied, 287 U.S. 662 (1932)].
Practice Tips
- Industry guidance documents. The lowest hanging fruit for experts to rely on is industry association guidelines or manufacturer literature, which typically describe what the industry considers accepted practices. Even when industry standards are not incorporated as contract standards, they may still be relevant to prove how professionals understand technical terms which are used in their business. [See N. Wind Constr. Servs., Ltd. Liab. Co. v. Campos EPC, Ltd. Liab. Co., No. 4:21-cv-00096-DCN, 2023 US Dist LEXIS 8944, at *14 (D Idaho Jan. 13, 2023) (Cost estimating guides)]. However, industry guidance documents do not necessarily define the standard of care. [See Tran v. Nguyen, No. A-3639-14T4, 2018 N.J. Super. Unpub. LEXIS 145, at *12 (Super Ct App Div Jan. 23, 2018)—Swimming pool installation handbook did not set legal standard of care for installation of swimming pool warning signs]. At a minimum, the attorney should work with his or her forensic experts to determine which industry guidance apply to a claim, and how the guidance is properly interpreted; for example, is guidance mandatory or suggestive?
- Compliance with building codes. Practitioners frequently contend with allegations that the client’s conduct violated the building code, and at times industry guidance documents are incorporated into the building codes themselves. For example, Section R703.4.1 of the 2024 International Residential Code requires that window flashings be installed according to the manufacturer’s instructions. However, it is not always clear whether code compliance fixes the standard of care. An easy example is found in Lapp v. Rogers, 265 Or. 586 (1973), which held that a building owner is liable to its injured tenant for failure to provide handrails at a staircase in violation of a building code provision. On the other hand, in Garaman, Inc. v. Williams, 912 P2d 1121, 1124 (Wyo. 1996), a case in which an architect admitted that it had a duty to know the applicable building codes, the court held that the architect was not automatically liable for a code violation when its design did not comply with the code as interpreted by the town.
- Compliance with minimum regulatory standards may not be enough. Also, the standard of care analysis does not end even if you can prove that the client met the governing regulatory standards. For example, in Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 591 (Colo. 1984), the court held that a propane supplier’s compliance with administrative safety regulations in a gas explosion case did not conclusively prove its compliance with the standard of care. Similarly, in United Blood Services v. Quintana, 827 P.2d 509 (Colo. 1992) a blood bank’s compliance with minimum safety standards did not defeat a claim that the bank failed to meet the standard of care. Because of the safety risk inherent in disease tainted blood, the Quintana court held the bank to a higher level of care “readily attainable through the adoption of practices and procedures substantially more effective in protecting others against harm than the self-decreed standard of the profession.” (Id. at 521).
Legal Strategy and Risk Management
Since the standard of care analysis can vary, attorneys and their forensic experts need to work closely together to gather and evaluate the objective data informing the standard of care. The data to be assessed needs to account for the perspective and direction found in industry guidance documents, building codes and regulatory directives, as well as actual standards in the locale at the time the work was performed. Beyond these, especially in severity claims, the attorney and their forensic expert need to consider the evolving “best practice” standards in the field. This is the rub; greater risks can effectively translate to the imposition of higher standards.
Accountability and Best Practices
The standard of care in construction is not a rigid formula; rather, it is a dynamic threshold shaped by professional norms, technical expectations, and legal precedent in the context of the claim being evaluated. It still acknowledges that errors will occur, but insists that those errors be reasonable and explainable. The distinction between an oversight and a negligent act is not just academic; it can impact reputations, liabilities, and outcomes.
As we’ve seen through both forensic and legal lenses, the key to navigating this terrain lies in documentation and diligent inquiry. Forensic experts bring clarity to technical failures, stripping away emotion and ambiguity to reveal whether a professional acted within the bounds of accepted practice. Attorneys translate those findings into legal arguments, weighing impact and contractual obligations.
Together, these disciplines reinforce a culture of accountability. They remind us that while perfection is not the standard, professionalism is. That errors may be human, but negligence is avoidable. And that the best defense against liability is a commitment to doing things right—from the first drawing to the final inspection.
For construction professionals, this means embracing continuous learning, maintaining meticulous records, and fostering open communication. For clients and stakeholders, it means understanding that not every flaw is a failure, and that the pursuit of excellence is a shared responsibility.