Green Liability Risk Not So Different from 'Normal' Construction Risk Mitigation

Sustainability lawsuits are caused by the same types of issues that have always prompted clients to sue AEC firms

Suits tend to center around four areas:

  1. Client expectations unmet (desired level of certification not achieved, project failed to qualify for incentives, energy savings not realized, sustainable elements increased cost or caused delay)
  2. Elevated standard of care
  3. Uninsurable guarantees or warranties
  4. Problems caused by new products or systems (didn't work as advertised, weren't installed properly, weren't operated or maintained properly)

The best tools for managing such risks are well-established, according to Erger:

  • Define and document the client's goals. (Don't guarantee that goals will be achieved; set and reinforce reasonable expectations throughout the project; don't assume risk of factors you can't control)
  • Set a reasonable standard of care. Don't allow elevated language about your performance to creep into the contract (such as incorporation of marketing language from your initial proposal)
  • Don't warrant or guarantee outcomes (specific level of a standard, specific energy savings, etc.)
  • Do due diligence when specifying products. Get the owner's informed consent for using new products, and document your research -- even if most if it is digital. Print it or take screen shots, and put it in a project file that you can find later

(more on handling green-build risk . . . )

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