Navigating the AI revolution: Duty of care in modern design

Construction professionals, like physicians, attorneys, and CPAs, are being pressed to adopt state-of-the-art tools offered by the burgeoning artificial intelligence industry. For those old enough to remember, state-of-the-art tools for architects and engineers evolved from hand calculations and calculators in the ’60s, to “Fortran + STRUDL” structural design “punch card” programs in the ’70s, to computer-assisted design software in the ’80s and ’90s, and building information modeling in the 2000s. Scheduling software has progressed from traditional critical path method schedules to graphical path method schedules with real-time updating and connectivity. But that was then, this is now. “State of the Art” is being defined in terms of days, not years. Consequently, a construction professional’s standard of care, driven in large part by state-of-the-art and present, prevailing practices, is also shape-shifting. The pressing question for these professionals and their risk management partners is whether the cost of entry for new technology is worth the risk of professional malpractice.

State of the art and industry custom

In products liability law, a design professional’s compliance with the state of the art can serve as a defense to design defect claims. While jurisdictions vary, state of the art has been defined by statute to mean “the technical, mechanical, and scientific knowledge of manufacturing, designing, testing, or labeling the same or similar products that was in existence and reasonably feasible for use at the time the product was manufactured.” Courts have applied this standard to bar liability where defendants proved their designs reflected what was technologically and economically feasible at the time. Crucially, state of the art is not synonymous with industry custom. Industry custom reflects what manufacturers actually do; state of the art reflects what feasibly could have been done given existing technology. As the Iowa Supreme Court explained in Chown v. USM Corp., “the inaction of an entire industry does not excuse failure to implement feasible safety advances.”

By contrast, the professional standard of care for negligence-based actions against architects and engineers is based upon peer comparison, not the use of the best available technology. The design professional’s standard of care is deceptively simple. Unless a statute, code, regulation, ordinance, or contract defines a higher duty, the law requires a design professional to exercise only “the reasonable care and competence” ordinarily exercised by peers of good standing—not adoption of every feasible advance. Compliance with codes or accepted practice often suffices, even if safer or more efficient technologies were available.

AI and professional duty

Artificial intelligence blurs this line. As AI-enabled tools increasingly become widely available and reasonably reliable, the gap between what is “state of the art” in products liability and what tools are required for “reasonable competence” in professional practice begins to close. In 2025, a design professional who refuses to engage with AI may soon be seen as ignoring feasible, practical tools that improve safety and efficiency. That, to a creative plaintiff’s lawyer, could spell disaster for a professional facing a malpractice claim.

Professional codes already anticipate this shift. The AIA Code of Ethics requires members to apply ‘the technical knowledge and skill which is ordinarily applied by architects of good standing practicing in the same locality’ and to ‘continually seek to raise the standards of … education, research, training and practice’. The National Society of Professional Engineers echoes this approach. Its recent position emphasizes that engineers must take responsibility for how AI is created and implemented and must pursue continuous education to stay current.

Takeaway

Once technical knowledge becomes professionally accepted, failure to apply it is negligence. The law will not tolerate professional inertia to new advances in the industry. Just as industry custom can’t shield a manufacturer when safer designs are feasible, a designer’s reliance on ‘this is how we’ve always done it’ will ring hollow once AI is broadly accepted as materially improving outcomes.

For practitioners, the lesson is clear: refusing to understand and adopt widely accepted advances in AI could lead to professional liability claims against you or your business. In the near future, failing to leverage AI may be on par with refusing to use CAD or BIM in 2025. The responsible charge required of a designer means judgment, oversight, and the ability to explain—not rubber-stamping machine-generated outputs. Of course, careful consideration of contract language that anticipates and defines the use of AI in the discharge of professional responsibilities is a must. Current contract forms (AIA, ConsensusDocs, EJCDC, etc.) have been slow to adopt standard of care revisions—but this doesn’t prevent carefully crafted revisions or additions that protect the designer and contractor alike.

For owners, contractors, and developers, future disputes will likely include claims of failure to use AI responsibly—whether in preventing coordination errors, avoiding unsafe load assumptions, or delivering projects on time. For architects and engineers, the safe harbor lies not in abstaining from AI, but in mastering it under professional standards.

So, the real question for 2025 is not whether AI can be used. It is whether the professional standard of care can still be met without it.

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