One of the greatest concerns for environmental consulting firms is the threat of being sued for breach of contract and negligence (malpractice). To reduce the risk inherent in their work and exposure to liability, environmental consultants need to understand what their “standard of care” should be.
A Very Brief Law Lesson as it Relates to Environmental Consultant Malpractice Cases
Professional malpractice (negligence) and breach of contract lawsuits against environmental scientists follow similar paths at trial. When the lawsuit is filed, the plaintiff’s attorney will commonly include both causes of action in the pleadings. As pointed out in Tyree v Cashin, 836 NYS 2d 490, 14 Misc. 3d 1220(A), “the distinction between malpractice and negligence is a ‘subtle one’ because ‘no rigid analytical line separate the two’ theories.” Citing another case, the appellant court in Green Hills v Aaron Streit, 032305 NYEDC (U.S. District Court, E.D. New York, 2005), distinguished between causes of action for negligence and breach of contract:
“It is well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated.”
Theoretically, if a written or verbal contract exists, the cause of action should be a breach of contract. Adjudication of the case is therefore dependent on the terms of the contract. If no contract exists, the case proceeds as a negligence action, and common law (the body of law created by the prior court decisions) will control. The outcome might be very different depending on whether it is adjudicated as a negligence or breach of contract lawsuit.
Regardless of the type of lawsuit, after all of the procedural and contractual issues are resolved, the lawsuit will probably focus on whether the defendant owed a duty to the plaintiff, and whether the defendant breached that duty either intentionally or by not adhering to the appropriate standard of care. As discussed in Tyree v Cashin,
“Because of the interrelationship between contractual and tort theories, particularly when the contract involves professional services, the contours of [Defendant’s] duty of reasonable care are relevant to the merits of Plaintiff’s contract claim.”
In ordinary negligence litigation, the basic standard of care is established by the judge or jury answering the question: what would a reasonable person of ordinary prudence do in similar circumstances? For litigation relating to professional malpractice, the standard of care is higher:
“This basic standard, however, is not invariably applied in all negligence cases. For example, the standard is modified and circumstances in which the alleged tort-feasor possesses special knowledge, skill, training, or experience pertaining to the conduct in question this superior to that of the ordinary person. Such a person is not held to the standard of a reasonably prudent person, but, rather, to a standard consistent with his or her specialized knowledge, skill, and other qualities.” DB Feedyards v Environmental Science, 16 Neb.App. 516, 745 N.W. 2d 593.
When a malpractice case is litigated in court, the expert witnesses for both the plaintiff and defendant testify compare the defendant’s work with what other professionals would do in circumstances. A witness for the plaintiff will testify that the professional didn’t follow standard protocol when compared with other consultants, and a witness for the defendant will testify that the consultant did. Who wins depends on the facts of the case and the perceived credibility of the witnesses.
What is the Standard of Care for Environmental Consultants?
An environmental consultant’s scope of work and standard of care can both be established in the contract. For instance, a contract can limit the consultant’s work to specific tasks, and can even establish a contract-specific standard of care higher or lower than the above traditional standard of care for professionals. Environmental consulting contracts I’ve seen nearly always establish the standard of care as that of a “professional under similar circumstances.” Although firms could contractually reduce their exposure to liability, I haven’t seen clauses stating “environmental consultant intends to complete its work following the standard of care exercised by the worst 10 percent of environmental consulting firms.”
For a negligence cause of action, or a contract cause of action where the contract doesn’t identify a standard of care, most courts will adopt the basic standard of care for professionals: the consultant’s work must to conform to the to a standard consistent with his or her specialized knowledge, skill, and other qualities as a prudent environmental consultant.
The bottom line is that for most lawsuits, the standard of care will be the same: what would an ordinary prudent environmental consultant do under similar circumstances?
How Can the Standard of Care for Environmental Consultants be Established?
The environmental consulting “industry” differs from most other professions in several ways:
- Many environmental consulting firms serve large, multi-state areas
- ASTM has created consensus-based standards that address much of the technical work performed by environmental consultants,
- Nearly everything an environmental consultant does is documented in a written report,
- Reports by environmental consultants are commonly distributed to lenders, other consultants, commercial real estate agents, real estate attorneys, environmental regulatory agencies and many others.
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The fourth unique characteristic of the environmental consulting industry is particularly noteworthy. If a consultant or an attorney wants to build and review a library of reports prepared by other environmental consultants to identify a standard of care, either locally or nationally, it probably can be done.
Few environmental consultants are prepared to expend the time and effort needed to discover what a local standard of care is before beginning their work, particularly when the consultant is working in a new geographic location. If a consultant wants to reduce its exposure to liability, it should either create a contract-specific standard of care (with the help of an attorney), or be diligent in adhering to national standards, such as those developed by ASTM.
Other Resources
- Cordiano, Dean M. “An Environmental Consultant’s Guide to Identifying and Avoiding Liability.”
- Wagner, Bill, “Will ASTM E1527-05 Save You From A Malpractice Claim”