Innovation drives the construction industry forward. Many of today's standard building materials were once viewed as untested alternatives. Architects and engineers have long been expected not only to design structures, but also to identify new methods, materials, and technologies that improve performance, reduce costs, enhance sustainability, or distinguish projects in an increasingly competitive marketplace.
Today, that pressure has intensified. Design professionals are increasingly asked to evaluate and specify emerging technologies such as 3D-printed construction systems, mass timber structures, smart building technologies, and other innovative applications of traditional materials. Owners and developers often view these products as opportunities to accelerate schedules, reduce labor costs, improve environmental performance, or create a market advantage.
Yet innovation carries risk. When a newly specified product falls short of expectations, plaintiffs frequently look beyond manufacturers and contractors to the architect or engineer who recommended, approved, or specified the product. As emerging technologies become more prevalent, design professionals increasingly face claims arising not only from defective drawings or calculations, but from the decision to embrace innovation itself. This raises a recurring conundrum. Does specifying a newer, less tested, or innovative product increase a design professional's liability exposure? The answer is both straight-forward and nuanced. The legal standard remains the same, but the degree of diligence required to satisfy that standard may change significantly when a product lacks an established track record of proven performance.
Design Professionals Are Not Guarantors of Product Performance
Courts throughout the country have consistently recognized that architects and engineers are not guarantors of perfect results. Rather, they are held to the professional standard of care exercised by reasonably prudent members of their profession under similar circumstances. In one of the most frequently cited cases on this point, the Minnesota Supreme Court explained that an architect "does not guarantee a perfect plan or satisfactory result and is liable only for failing to exercise the ordinary care and skill expected of member so the profession." City of Mounds View v. Walijarvi, 263 N.W.2d 420, 424 (Minn.1978). Florida follows the same general principle. In A.R. Moyer, Inc. v. Graham, the Florida Supreme Court recognized that architects may be liable for professional negligence but rejected the notion that liability automatically follows an unsuccessful project outcome. 285 So.2d 397 (Fla. 1973).
These decisions reflect a foundational principle of professional liability law. Architects and engineers are subject to general negligence principles, not warranty principles. Unlike manufacturers, they do not guarantee that every product incorporated into a project will perform exactly as intended.
The standard of care for professional design services is defined by the American Institute of Architects in its AIA Document B101-207, Standard Form Agreement Between Owner and Architect §2.2: "The architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care, and the orderly progress of the project." [i]
Accordingly, the failure of a specific product does not automatically establish professional negligence. The more important inquiry is whether the architect or engineer exercised reasonable professional judgment when selecting or approving the product.
The Standard of Care Does not Change- But It's Application May
Innovation can significantly affect how courts and juries evaluate whether a design professional satisfied the applicable standard of care. Consider two scenarios. In one project, an engineer specifies a roofing product that has been successfully used throughout the industry for decades and its performance characteristics are well documented. In another project, the engineer specifies a newly introduced roofing system with limited field history and little long-term performance data. The governing legal standard remains the same in both situations. The engineer must exercise the degree of care and skill ordinarily exercised by reasonably prudent engineers under similar circumstances.[ii] However, what constitutes reasonable diligence may differ substantially.
The newer and less tested the product, the more likely it becomes that a plaintiff's expert will argue that additional investigation, testing, consultation, peer review, or analysis should have occurred before the product was specified.[iii] Innovation, therefore, does not necessarily alter the standard of care itself. Rather, it may affect what actions are necessary to satisfy that standard.
Foreseeability Remains the Central Question
Professional liability claims involving emerging products frequently turn on foreseeability. Courts generally evaluate design decisions based on information that was reasonably available when the decision was made, not information that becomes available only after a failure occurs. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270 (2005). The distinction is critical because virtually every construction innovation appears successful until unexpected problems emerge. Plaintiffs often seek to evaluate design decisions in hindsight. The law generally asks a different question. Could a reasonably prudent design professional have anticipated the risk at the time of the specification decision was made?
If meaningful concerns regarding durability, code compliance, environmental exposure, compatibility, maintenance requirements, or performance limitations were known, or reasonably discoverable, a plaintiff may argue that the architect or engineer failed to exercise reasonable professional judgment. Conversely, where a product failure result from risks that were unknown and not reasonably foreseeable at the time of design, liability becomes significantly more difficult to establish.
As a practical matter, the newer the product, the more important documentation becomes in demonstrating that the design professional acted reasonably given the information available at the time.
The Lessons of Yesterday's Innovations
The construction industry has encountered this issue before. Many products that were once viewed as cutting edge solutions ultimately generated significant litigation. Examples include Exterior insulation and Finish Systems (EIFS), commonly referred to as synthetic stucco[iv]; Polybutylene plumbing systems[v]; Chinese drywall products[vi]; certain fire retardant- treated wood products[vii]; and various building-envelope and cladding systems later associated with moisture intrusion and durability concerns.[viii]
In many of these disputes, plaintiffs sought to hold architects and engineers liable for specifying products that later became problematic. The recurring legal issues were not whether the product ultimately failed. Rather, courts focused on whether the design professional knew, or should have known, about the risks associated with the product at the time it was specified. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270 (2005). The same framework is likely to govern disputes in today's emerging technologies.
Emerging Technologies Create Emerging Liability Risks: 3D Construction Moves from Experiment to Mainstream
Not long ago, a 3D-printed construction was viewed as a futuristic concept. Today, it is increasingly becoming a commercial reality. Developers have completed entire neighborhoods of 3D-printed homes in Texas and are pursuing similar projects throughout the United States. These developments promise reduced labor costs, accelerated construction schedules, lower material waste, and expanding housing opportunities. What began as a novelty has quickly evolved into a viable construction method. The legal question, however, remains largely unanswered.
Unlike traditional and masonry systems that benefit from decades of performance history, 3D-printed structural systems have only limited real-world track records. Questions remain regarding long-term durability, cracking behavior, weather resistance, reinforcement methods, repair procedures, and lifecycle maintenance.
Should future failures occur, plaintiffs may argue that architects and engineers were too quick to embrace the technology or failed to sufficiently evaluate available testing and performance data before specifying it. Defendants, meanwhile, will likely emphasize the engineering analyses, code approvals, testing protocols, and manufacturer representations that supported the decision at the time. The resulting disputes are likely to focus not on whether the technology ultimately succeeded, but whether adoption of the technology was reasonable when the specification decision was made. [ix]
Mass Timber's Rapid Growth Brings New Professional Liability Questions
Mass timber construction provides another example of innovation outpacing legal precedent. Cross laminated lumber (CLT) and other engineered wood products have experienced dramatic growth over the past decade. Building code revisions now permit significantly taller timber structures than were previously allowed, resulting in a growing number of commercial, residential, educational, and mixed-use developments throughout North America.[x]
Supporters point to sustainability benefits, reduced carbon footprints, lighter structural loads, and faster construction schedules. At the same time, questions remain concerning moisture intrusion, fire performance, long-term durability, insurance underwriting, and maintenance requirements.[xi]
While engineering advances and code revisions have addressed many of these concerns, the relative novelty of large-scale timber structures means long-term performance data remains more limited than that available for traditional steel and concrete systems. For design professionals, the risk is not necessarily that mass timber will fail. Rather, the risk lies in whether project-specific conditions warranted additional investigation before the product was selected. Future litigation may focus on questions such as whether moisture exposure risks were adequately evaluated, whether fire resistance assumptions were supported by available data, and whether maintenance requirements were effectively communicated to owners.
Smart Buildings Create an Entirely New Category of Risk
Unlike traditional construction products, smart building systems blur the line between physical construction and technology services. Modern projects increasingly incorporate automated building controls, sensor networks, artificial intelligence applications, energy-management systems, and interconnected infrastructure.
These technologies promise improved efficiency and reduced operating costs. They also create risks that traditional construction law has rarely confronted.[xii]
For example, a building automation system may function exactly as designed from a construction standpoint yet still create operational failures because of software defects, cybersecurity vulnerabilities, data-management issues, or integration problems. When those failures occur, plaintiffs may attempt to pursue claims against multiple participants, including manufacturing software providers, contractors, systems integrators, and design professionals. As these technologies become more prevalent, courts will increasingly be asked to define where professional responsibility ends, and product responsibility begins.
Florida's Expansive View of Professional Liability
Florida law provides additional reasons for design professionals to approach innovative products carefully. In A.R. Moyer, the Flroida Supreme Court recognized that a contractor could pursue a negligence claim against an architect despite the absence of contractual privity. The decision reflects Florida's longstanding willingness to examine professional conduct independently from contractual relationships and reinforces the importance of sound professional judgment when recommending or specifying emerging technologies. Additionally, Florida's statute of repose (Fla. Stat. §95.11) remains an important consideration in construction defect litigation involving latent defects and allegedly defective building materials.
Questions Every Design Professional Should Ask Before Specifying an Emerging Product
Before incorporating a new product or technology into a project, architect and engineers should consider:
- What independent testing supports the product's performance claims?
- How much real-world performance history exists?
- Are there project-specific conditions that increase risk?
- Have risks and benefits been documented and communicated to the owner?
If litigation occurs years later, documentation may become the strongest evidence to prove the design professional exercised reasonable judgment.
Managing Risks Without Sacrificing Innovation
The law does not discourage innovation. It simply expects innovation to be accompanied by reasonable professional diligence. Design professionals seeking to reduce exposure when specifying emerging materials should consider:
- Performing enhanced due diligence.
- Reviewing available testing and field-performance data.
- Documenting reliance on manufacturer representations.
- Obtaining peer review or specialty consultant in out where appropriate.
- Verifying code compliance independently.
- Utilizing mock-ups, pilot projects, or field testing when feasible.
- Involving owners in decisions involving emerging technologies.
- Avoiding contractual warranties regarding product performance.
- Preserving detailed project documentation explaining rationale behind specification decisions.[xiii]
As emerging materials and innovative construction methods become increasingly common, courts will inevitably scrutinize whether architects and engineers exercise sufficient diligence before incorporating those products into their designs. Courts will be asked to determine whether design professionals acted reasonably when adopting technologies that had little historical performance data to guide them. The key question will be whether the design professional acted reasonably in evaluating the risks and benefits associated with that innovation at the time the specification decision was made.
Innovation remains essential to the future of construction. When a product lacks decades of performance history, the best protection for design professionals may not be the product itself, but the diligence, documentation, and professional judgment that preceded its selection.
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[i] Munhall, Dale L. Standard of Care: Confronting Errors & Omissions Up Front. AIA Chapter 16.01 Risk Management Strategies. (Nov. 30, 2023).
[ii] Restatement (Third) if Torts: Liability for Economic Harm § 4 (2020).
[iii] Id.
[iv] Binsacca, Rich. The Trouble with EIFS: Is it a problem product or just misunderstood? Architect Magazine. (Nov. 2, 2004).
[v] Gromicko, Nick & Kenneth Shepard. Polybutylene for Inspectors. International Association of Home Inspectors.
[vi] Henning, Stephen & Patrick Schoenberg. Chinese Drywall: A New Legal Problem for America's Builders. Wood Smith Henning & Berman.
[vii] Hodgin, Derek. Construction Litigation Issues: An Update. International Institute of Building Enclosure Consultants. (Sept 1., 2018).
[viii] Id.
[ix] Product Liability in 3D Built Printed Construction. Advise & Consult. (November 13, 2025).
[x] Coppy, Donald. Risks and Rewards of Mass Timber. The construction Specifier. (March 2, 2025).
[xi] Id.
[xii] Reid Brewin Architects. Understanding Smart Buildings: A New Era in Architectural Design. (Feb. 8, 2024).
[xiii] AIA Document B101-2017, Standard Form Agreement Between Owner and Architect, §2.2.
