I've been sued 5 times, have done several forensic reports, and have appeared as an expert witness in depositions, arbitrations, and in court (all in the state of California). While the "standard of practice" model is a "reasonable" general approach to understanding negligence, and acts as a "governor" on the system, it ain't the whole story by a long shot. The likelihood of a suit depends not so much on how the cause(s) of action got built into the project - whose fault it actually might be - but what type the project is, who the claimant is, and how badly they were injured or inconvenienced.
The actions against my firm (multifamily condos!) resulted from water intrusion in every case, a very common problem in multifamily residential projects in Southern CA, and, by degrees, probably just about everywhere. The fact that other fims were involved in similar actions, or that it was a common defect helped not a whit. Our drawings were not perfect (none ever is), and one project in particular involved a bad choice on our part, one we allowed ourselves to be pushed into by the client. However, in nearly every case, the actual cause of problems was shoddy construction and contractor failure to follow the drawings and specifications. We had E&O coverage, and our personal "estates" were not at risk, but no way we could extricate ourselves from the actions, and we (our carrier) always ended up making a contribution to the settlement. Insurers know how the game is played, as do defense attorneys. The plaintiffs' attorneys play the game for all it's worth; we always lost our deductible, and saw our premiums increase somewhat over the years, largely because of the projects completed and in the pipeline, and the potential for future liability.
I think the "standard of practice" should be thought of by architects not as an excuse for common errors made by most architects in a particular place and time, but as design approaches acceptable at the time which may be found wanting in future, with the understanding that the fact of damage, an injured party or parties, and aggressive plaintiff representation will get you sued and drawn into depositions no matter what. You will commit many hours of staff time, lose your deductible, and come away a little dispirited by the whole process. With respect to the codes in force, nobody will get off the hook for failure of the design solution to conform to their strictures if any becomes an issue, no matter how common a misconstruction of a provision may be, i.e., with respect to fire assemblies.
Also, as recent history shows, it never rains in California except when it does. Great waterproofing should be universal. I'm not sure I know how to detail against mudslides, but I imagine there is some attorney out there trying to figure out how to make everybody but God responsible.
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Gary Collins AIA
Principal
Gary R. Collins, AIA
Jacksonville OR
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