At the completion of the project, the contractual relationship between the architect and the owner comes to an end.

However, a period of continuing liability follows under the law of tort, during which time the architect may still be
liable for negligent acts or omissions. The length of this continuing liability period is established by individual state
law, and may vary considerably (see page 109).
Law and Practice for Architects 109

LIMITATION OF LIABILITY

A survey of prominent cases involving design professionals over time indicates a broad range of areas
within practice where litigation has arisen, some of which, a few years ago, would have appeared unlikely
areas of vulnerability. However, the increased duty of care expected of design professionals to the level
where reasonable behavior has been raised to new heights of expected performance, has given rise to
claims in some quite unexpected areas. For example, negligent specification of materials has become an area
of concern, while approval of shop drawings has also resulted in legal action. In the most extreme cases,
there were reports of the engineer who inspected the roof of the Hyatt Regency, Kansas City, being enjoined
in a law suit for the collapse of the skywalk despite no inspection on his part of the faulty structure; similarly
a firm of architects in Philadelphia were sued for designing a shopping mall conducive to kidnapping
following a crime committed there1. Beyond these incidents, however, there is one area of concern which,
when viewed in context, has increased in prominence and magnitude. In a study undertaken in Wisconsin
over a twenty-year period, it transpired that 23 percent of the cases involving architects taken to the Supreme
Court concerned the question of limitation of liability. Similarly, a review of other cases nationally indicates
a considerable degree of debate and activity within this area. A limitation period is expressed in statute form
in each state, after the expiration of which no legal action can be brought by an aggrieved person. It was
developed and expanded largely in the 1950s as the doctrine of privity of contract was eroded to give the
design professions some degree of protection from indefinite legal threat. As the statutes are enacted on a
state-by-state basis, they vary considerably both in the time periods they specify, and in the allocation of
time for specific actions. For example, differing limitation periods may be specified for slander, bodily
injury, property damage, etc. (although some actions may fall under two or more categories), and may vary
in duration from two to fifteen years, depending upon the state in which they are enacted.
Some states enact statutes of repose as opposed to statutes of limitation specifically for work undertaken by
the design professions. The central difference lies in commencement of action; for the latter, an event
establishes the date from when the time period for action begins; in a statute of repose, however, a specific
date will activate the period, irrespective of any fault or action on the part of the designer. This may, of
course, mean that the limitation period could have expired before building failure or damage have occurred,
thus depriving the aggrieved party of a remedy. The potential problems of constitutionality here, the
deprivation of the plaintiffs day in court as opposed to the affording of some degree of legal protection to
the design professional, has led to a number of challenges to these statutes, and a number of interpretations
as to their meaning and purpose. Although these cases have been decided in various states, they collectively
provide a broad picture of the variation in interpretation which presently exists in relation to when the
statutory period begins. If AIA contract documentation is used, provisions are included to establish the date
at the end of the construction of the work upon certification of substantial completion, although in some

cases legal action against the architect has been allowed where the limitation period was conceived as
beginning at the end of the professional relationship, which could include a period where the architect gives
the client post-completion advice on problems arising from the construction2. Architects providing
continuing services on a number of projects are particularly ill served by this ruling. Furthermore, some
courts have accepted the Injury Rule as being applicable, establishing the construction of the limitation
period as commensurate with the actual failure of the building, as would be the case in any third party injury
case3. However, perhaps the most worrying development in this field for design professionals concerns the
Discovery Rule. Here, the date of commencement is established at the time the plaintiff discovers, or
should have discovered, the fault. The rationale for the rule lies in the complexity of building construction,
the potential difficulties involved in determining faults which may be covered over or be underground and
the potential time lag from completion to discovery. In such cases, by the time the plaintiff has realized the
impact of the fault in the absence of the Discovery Rule, he or she may be statutorily deprived of a remedy.
The Discovery Rule allows for both fault and damage to be taken into consideration and has been used
successfully in a number of states. The implications of the Discovery Rule have had a dramatic impact upon
architectural practice. Buildings completed years previously may suddenly develop signs of failure4 from
this point, the client will have a statutorily set number of years in which to make a claim, thereby providing
the architect with the prospect of virtually unlimited future liability. In the past, architects who insured
against potential legal suits could allow coverage to lapse at the expiration of the statutory period related to
each project; retiring professionals also could terminate the coverage after this period, confident of no
further claims against them. With the emergence of the Discovery Rule, however, such time-related
protection no longer exists, and architects may be faced with potential claims long after their retirement.
This point is most forcibly brought home in an English case, where an architect was sued eleven years after
his death, and his estate, which supported his wife in old age, was threatened5. There have, fortunately, been
some developments in the past few years that have given some relief to the situation. Analyses of the
problem of longevity of exposure have yielded some comforting findings. For example, the majority of
claims (95 percent) are typically raised in the first ten years following completion. Beyond that, natural
deterioration, poor maintenance and a hazier recollection of events by witnesses and relevant parties make
building a convincing case less easy. Consequently, the idea of a long-stop statute has been successfully
initiated in many states and other countries. In Scotland, for example, the Prescription of Limitation
(Scotland) Act 1973 provides a statutory period of twenty years for claims to be made. In the United States,
some jurisdictions have extended the period during which architects may be held accountable (in Wisconsin,
for example, from six to ten years), but have specified that it begins upon the date of substantial completion.
This provides an extended period of time in which a suit may be initiated, but provides the architect with a
guaranteed date of limitation expiration. Statutes of repose have still been legally challenged, but provide a
measure of predictability to architects in dealing with their liability exposure.
References
1. Wall Street Journal, 6 December 1983, 21.

2. County of Milwaukee v. Schmidt Garden and Erikson 4 3 Wi 2d 445, 168 NW 2d SS9 (1969).
3. Abramowski v. Wm. Kilps Sons Realty, Inc. 80 W.S. 2d 468; 2S9 N.W 2d 306 (1977).
4. Rosenberg v. Town of Bergen, 61 NJ 190, 293 A2d 662 (1972).
5. Cecil, R.,Writing your Will to Defend your Estate from Eternal Liability, Royal Institute of British
Architects Journal, December 1982.