A dissatisfied software purchaser who experiences lengthy delays in implementation or receives a custom system that fails to deliver promised performance may turn to litigation after exhausting other avenues of resolution. The customer will usually discover that its ability to recover from the software vendor or computer consultant is restricted by limitations of liability in the applicable agreement. The customer might attempt to circumvent contractual limitations by, among other things, pleading a tort-related claim based in negligence or "computer malpractice." The issue becomes: Should the tort of professional negligence apply to a software vendor who renders complex services requiring special skill and knowledge, or only to traditional professions governed by licensing requirements, a code of ethics and other strict standards? While the tort of professional negligence for computer consultants is seemingly foreclosed under New York law in most circumstances, other states have taken up the issue in recent years.
This article will address professional liability generally, the judicial limitations placed upon tort recovery, as well as recent decisions that have considered "computer malpractice" in the digital era.
What Is a Professional?
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