Design Professionals’ Standard of Care in Light of COVID-19

June 3, 2020

Design professionals provide various services as part of the construction process, including site visits, payment certification duties, problem solving, and status reporting.  Given the unusual conditions presented by COVID-19, safely performing these tasks by making in person visits to construction sites has become a challenge.  How can design professionals inspect work in progress or provide adequate assurance that work has been completed if traveling to the site is prohibited or personal observations of the site are limited?  Are “virtual” site observations effective?

Design professionals are exploring whether the use of live video technology, such as FaceTime or Zoom, might effectively capture specific images of construction in progress.  Using this process, the architect or engineer would direct an on-site representative (perhaps a contractor or owner’s agent) to tour and display areas of interest.  This process can be supplemented with photos or video.  Some commenters have indicated that relying on photos alone is not sufficient.

The traditional standard of care is what a reasonably prudent design professional in the same or similar locale would do under same or similar circumstances.  The standard of care is also reflected in the design professional’s contract for services.  One wonders how a judge, arbitrator, or jury will look back at all of the unusual circumstances occurring during a pandemic, and determine how a design professional managed to reasonably fulfill all of the necessary obligations.

Given the current environment, the best course of action would be to:

  • carefully communicate with owners, consultants, and contractors;
  • express any and all concerns and explore the circumstances beyond your control;
  • establish firm understandings of revised procedures and project schedule commitments;
  • thoroughly document the specific steps taken to fulfill contractual obligations and your progress in each phase of services provided for the project; and
  • provide clearly written disclosures and disclaimers to meet the specific project needs and the restrictions applied to each location.

Working during a pandemic is frustrating and provides new challenges.  There are no approved or prescribed steps that will definitively satisfy the standard of care, as the situation is developing and evolving.  It makes sense to stay abreast of industry updates and consult with legal counsel as issues arise.