Table of Contets
Arizona Statutes
When the Limitations Period Begins to Run for Claims of Design
Defect
Jobsite Injury Claim Against Architect for
Negligent Supervision of Construction
Real Estate Developer’s Claim that Architect
was Negligent in Preparing Plans or Specs
Contractor’s Claim for Economic Damages
Caused by Negligent Plans or Specs
Arizona Statutes and Administrative Code Sections on Architects’
Responsibilities
The Code of Hammurabi, 1800 B.C., Babylonia: Under the rule of "lex
talionis," a builder's son is to be put to death where negligent
construction resulted in the death of the property owner's son.
Early English Common Law: The architect is an arbitrator between the
owner and the building contractor, and consequently, since his decisions
are quasi-judicial, he is not to be liable for his mistakes.
Modern American Law, 2007: It depends. There are shades of gray.
There are nuances. Sometimes the architect is responsible. Sometimes
the architect is not responsible. What did the contract say? What do the
expert witnesses say? What was the project like? What was the real-
estate developer like? Who was the contractor? When did this happen?
Who said what? Where did they say it? When did they say it?..........…
Arizona Statutes
A.R.S. 32-121. Certificate or registration required for practice
A person or firm desiring to practice any board regulated profession or
occupation shall first secure a certificate or registration and shall comply
with all the conditions prescribed in this chapter.
A.R.S. 32-122.01. Qualifications for professional registration
A. An applicant for professional registration as an architect, engineer,
geologist or landscape architect shall:
1. Be of good moral character and repute.
2. Be actively engaged in education or experience, or both, in the
profession for which registration is sought for at least eight years.
3. Unless exempt under section 32-126, pass the in-training and
professional examinations in the profession in which registration is
sought.
B. An applicant for professional registration as an assayer or land
surveyor shall:
1. Be of good moral character and repute.
2. Be actively engaged in education or experience, or both, in the
profession for which registration is sought for at least six years.
3. Unless exempt under section 32-126, pass the in-training and
professional examinations in the profession in which registration is
sought.
C. In computing the period of active engagement required under this
section:
1. Each year of study satisfactorily completed in an architectural,
engineering, geological or landscape architectural school approved by
the board is equivalent to one year of active engagement up to a
maximum of five years. One year or more of teaching architectural,
engineering, geological or landscape architectural subjects in a school
approved by the board is equivalent to one year of active engagement.
2. Each year of study satisfactorily completed in an assaying or land
surveying curriculum and school approved by the board is considered
equivalent to one year of active engagement up to a maximum of four
years. One year or more of teaching assaying or land surveying or other
courses approved by the board as pertinent to the profession in which
registration is sought in a school approved by the board is equivalent to
one year of active engagement.
D. Except as provided in subsection E of this section, experience credited
by the board under this section and sections 32-101, 32-122 and 32-126
must be attained under the direct supervision of a professional who is
satisfactory to the board and registered in this state, another state or a
foreign country in the profession in which the applicant is seeking
registration, except that up to one year's experience may be attained
under the direct supervision of a professional who is satisfactory to the
board and registered in another profession regulated under this chapter
in this state, another state or a foreign country.
E. By two-thirds majority vote the board may allow an applicant except for
an architect applicant to meet the requirements of subsection D of this
section by crediting comparable experience satisfactory to the board that
the applicant attained without direct supervision of a registered
professional.
A.R.S. 32-128. Disciplinary action; letter of concern; judicial review
A. The board may take the following disciplinary actions, in combination
or alternatively:
1. Revocation of a certification or registration.
2. Suspension of a certification or registration for a period of not more
than three years.
3. Imposition of an administrative penalty of not more than two thousand
dollars for each violation of this chapter or rules adopted pursuant to this
chapter.
4. Imposition of restrictions on the scope of the registrant's practice.
5. Imposition of peer review and professional education requirements.
6. Imposition of probation requirements that are best adapted to protect
the public safety, health and welfare and that may include a requirement
for restitution payments to professional services clients or to other
persons suffering economic loss resulting from violations of this chapter
or rules adopted pursuant to this chapter.
7. Issuance of a letter of reprimand informing a person regulated under
this chapter of a violation of this chapter or rules adopted by the board.
B. The board may issue a letter of concern if the board believes there is
insufficient evidence to support disciplinary action against the registrant
or home inspector but sufficient evidence for the board to notify the
registrant or home inspector of the board's concern. A letter of concern
is a public document.
C. The board may take disciplinary action against the holder of a
certificate or registration under this chapter who is charged with the
commission of any of the following acts:
1. Fraud or misrepresentation in obtaining a certificate of qualification,
whether in the application or qualification examination.
2. Gross negligence, incompetence, bribery or other misconduct in the
practice of the profession.
3. Aiding or abetting an unregistered or uncertified person to evade this
chapter or knowingly combining or conspiring with an unregistered or
uncertified person, or allowing one's registration or certification to be
used by an unregistered or uncertified person or acting as agent,
partner, associate or otherwise of an unregistered or uncertified person,
with intent to evade this chapter.
4. Violation of this chapter or board rules.
5. Failing to pay a collaborating registered professional within seven
calendar days after the registrant receives payment from a client unless
specified otherwise contractually between the prime professional and the
collaborating registered professional. For the purposes of this
paragraph, "collaborating registered professional" means a registered
professional with whom the prime professional has a contract to perform
professional services.
D. The board may make investigations, employ investigators and expert
witnesses, appoint members of advisory committees and conduct
hearings to determine whether a disciplinary action should be taken
against the holder of a certificate or registration under this chapter.
E. An investigation may be initiated on receipt of an oral or written
complaint. The board, on its own motion, may direct the executive
director to file a verified complaint charging a person with a violation of
this chapter or board rules and shall give notice of the hearing pursuant
to title 41, chapter 6, article 10. The secretary or executive director shall
then serve upon the accused, by either personal service or certified mail,
a copy of the complaint together with notice setting forth the charge or
charges to be heard and the time and place of the hearing, which shall
not be less than thirty days after the service or mailing of notice.
F. A person who has been notified of charges pending against the
person shall file with the board an answer in writing to the charges not
more than thirty days after service of the complaint and notice of hearing.
If a person fails to answer in writing, it is deemed an admission by the
person of the act or acts charged in the complaint and notice of hearing.
The board may then take disciplinary action pursuant to this chapter
without a hearing.
G. A disciplinary action may be informally settled by the board and the
accused either before or after initiation of hearing proceedings.
H. On its determination that any person has violated this chapter or a
rule adopted pursuant to this chapter, the board may assess the person
with its reasonable costs and expenses, including attorney fees, incurred
in conducting the investigation and administrative hearing. All monies
collected pursuant to this subsection shall be deposited, pursuant to
sections 35-146 and 35-147, in the technical registration fund
established by section 32-109 and shall only be used by the board to
defray its expenses in connection with investigation related training,
disciplinary investigations and hearings. Notwithstanding section 35-
143.01, these monies may be spent without legislative appropriation.
I. The board shall immediately notify the secretary of state and clerk of
the board of supervisors of each county in the state of the suspension or
revocation of a certificate or of the reissuance of a suspended or
revoked certificate.
J. Except as provided in section 41-1092.08, subsection H, final decisions
of the board are subject to judicial review pursuant to title 12, chapter 7,
article 6.
Interpretation of Statute
1. Violations
Where plans and specifications prepared for use in constructing public
building do not show, by a seal, who is responsible for their preparation,
the unknown draftsman is liable for the violation, and contractor and
agent for public construction may be liable if they aid and abet the
unlicensed draftsman. Op.Atty.Gen. No. 57-140.
2. Review
Remedy by appeal, under statute, from adverse determination of state
board of technical registration was not so plain, speedy and adequate as
to preclude resort to prohibition by one denying jurisdiction of the board.
State Bd. of Technical Registration v. McDaniel (1958) 84 Ariz. 223, 326
P.2d 348. Prohibition 3(3)
Ariz. Admin. Code R4-30-201. Registration as an Architect, Assayer,
Engineer, Geologist, Landscape
ARIZONA ADMINISTRATIVE CODE
TITLE 4. PROFESSIONS AND OCCUPATIONS
CHAPTER 30. BOARD OF TECHNICAL REGISTRATION
ARTICLE 2. REGISTRATION PROVISIONS
Current through March 31, 2006(Supp. 06-1)
Architect, or Land Surveyor
A. An applicant for registration as an architect, assayer, engineer,
geologist, landscape architect, or land surveyor shall submit an original
and one copy of a completed application package for professional
registration that contains the following:
1. Evidence of successful completion of the current national professional
examination or waiver of the examination pursuant to A.R.S. § 32-126
and R4- 30-203 in the category, and branch if applicable, for which
registration is sought. Applicants shall arrange to have their examination
results sent directly to the Board from the applicable testing agency
holding the examination results;
2. Name, residence address, mailing address if different from residence,
and telephone number, of the applicant;
3. Date of birth and social security number of the applicant;
4. Citizenship or legal residence of the applicant;
5. Category, and branch of engineering if applicable, for which the
applicant is seeking registration;
6. A detailed explanatory statement and documentation, regarding;
a. Any disciplinary action, including suspension and revocation, taken by
any state or jurisdiction on any professional or occupational registration,
certification, or license held by the applicant in any state or jurisdiction;
b. Refusal of any professional or occupational registration, certification,
or license to the applicant by any state or jurisdiction;
c. Any pending disciplinary action in any state or jurisdiction on any
professional or occupational registration, certification, or license held by
the applicant;
d. Any alias or other name used by the applicant; and
e. Any conviction of the applicant for a felony or misdemeanor, other
than a minor traffic violation.
7. State or jurisdiction in which the applicant holds any other professional
or occupational registration, certification, or license, type of registration,
certification or license number, year granted, how registration,
certification, or license was granted (by examination, education,
experience, or reciprocity), and the number of examination hours taken
by the applicant;
8. State or jurisdiction in which the applicant has pending an application
for any type of professional or occupational license, registration, or
certification, type of license, registration or certification being sought, and
the status of the application;
9. Name, mailing address, years attended, graduation date, major, and
type of degree received from each college, university, or educational
institution the applicant attended;
10. Certified transcripts sent directly to the Board from the registrar of
each college, university, or educational institution the applicant attended,
unless previously provided to the Board pursuant to R4-30-204;
11. Name, current address, and telephone number of the applicant's
current and former employers in the category for which registration is
sought; dates of employment; applicant's title; description of the work
performed; and number of hours worked per week, unless previously
provided to the Board pursuant to R4- 30-204;
12. Names and addresses of immediate supervisors in past and present
employment in the category for which registration is sought. An applicant
who has been working in the category for which registration is sought for
10 or more years shall provide the names and address of all immediate
supervisors during the most recent 10-year period. If an applicant cannot
supply the names and addresses of supervisors for at least three
engagements, the applicant shall provide to the Board a written, sworn
statement explaining the inability to provide this information, and the
names and addresses of three references, unrelated to the applicant, at
least two of whom are registered in the category for which registration is
sought, unless previously provided to the Board pursuant to R4-30-204;
13. A release authorizing the Board to investigate the applicant's
education, experience, moral character, and repute;
14. Certificate of Experience Record and Reference Forms from the
applicant's present and past immediate supervisors, unless previously
provided to the Board pursuant to R4-30-204. The applicant shall also
provide Certificate of Experience Record and Reference Forms from
additional references as required by the Board. The applicant shall
provide the name, address, and telephone numbers of all references.
The applicant shall ensure that completed reference forms are provided
to the Board;
15. Evidence of successful completion, or waiver by the Board, of the
applicable in-training examination, unless previously provided to the
Board pursuant to R4-30-204. An applicant for registration who has
successfully completed an in-training examination in another jurisdiction
in the category for which registration is sought equivalent to the
examination for that category administered in Arizona shall submit proof
of examination directly from the authority that administered the original
examination. An applicant seeking professional registration as an
architect or landscape architect may take the in-training examination at
the same time as the professional examination. An applicant seeking
professional registration as an assayer, engineer, geologist or land
surveyor shall pass the applicable in-training examination before
admission to the professional examination;
16. Certification that the information provided to the Board is accurate,
true and complete; and
17. The applicable fee.
B. If an applicant does not have the required education and experience
for registration, the Board may, upon request of the applicant, hold the
application for a period of time that does not exceed one year from the
date the application is filed with the Board. All time-frames adopted
pursuant to Title 41, Chapter 6, Article 7.1 are suspended during the
above-referenced time.
C. An applicant holding a certificate of qualification issued by one of the
national registration bodies recognized in R4-30-203(B) shall arrange to
have the record forwarded to the Board by the national registration body.
If the forms provided by the national registration body contain all the
information described in A.R.S. § 32-122.01 and subsection (A), the
Board may accept the forms in lieu of requiring the applicant to furnish
the information directly to the Board.
D. The Board staff shall review all applications and, if necessary, refer
completed applications to an advisory committee for evaluation. If the
application for registration is complete and in the proper form and the
Board staff or committee is satisfied that all statements on the application
are true and that the applicant is eligible in all other aspects to be
registered in the field for which the application was filed, the Board staff
or committee shall recommend that the Board certify the applicant as
eligible for registration. If for any reason the Board staff or committee is
not satisfied that all of the statements on the application are true or that
the applicant is eligible in all respects for registration, the Board staff
shall make a further investigation of the applicant. The Board staff and
committee shall submit recommendations to the Board for approval. The
Board may also require an applicant to submit additional oral or written
information if the applicant has not furnished satisfactory evidence of
qualifications for registration.
E. The Board may accept documentation that an applicant has passed a
written national examination in the area for which registration is sought
from a national council of which the Board is a member or a professional
association approved by the Board.
F. The Board shall not accept an application for registration renewal
unless the applicant has responded to the questions on the application
relating to good moral character and other misconduct and signed the
application for renewal. The Board shall return an incomplete application
to the applicant which may result in assessment of a delinquent renewal
fee.
G. An applicant may withdraw an application for registration by written
request to the Board. Any fee paid by the applicant is non-refundable. If
an applicant withdraws an application, the Board shall close the file. An
applicant whose file has been closed and who later wishes to apply for
professional registration shall submit a new application package to the
Board pursuant to R4-30-201 and R4-30-202.
WHEN LIMITATIONS PERIOD BEGINS TO RUN ON NEGLIGENT
DESIGN CLAIM AGAINST ARCHITECT
1. Summary, two national views
a. BACKGROUND: Does the action accrue and the statute of
limitations begin to run according to the traditional view—that the action
springs into being when the tortious act is completed regardless of the
wronged party's lack of knowledge or complete ignorance of the
negligence, or could the accrual be said to occur on the date of
discovery, or on the date when, by the exercise of reasonable care, the
plaintiff should have discovered the wrongful act?
b. DIVERGENT VIEWS: Courts have taken two types of views to
determine the time when the statute of limitations begins to run on a
negligent design claim against an architect. Every state follows one of the
two methods of determining the time when the statute of limitations
begins to run on an action against an architect based on a claim of
negligent design.
i. TRADITIONAL VIEW: Under the long-established view, the statute
begins to run at the time of the performance of the allegedly negligent
act. The statutory period runs from the time the tort was committed
although the injured person had no knowledge or reason to know of it.
The period does not begin until the injured person has knowledge or
reason to know of the facts.
ii. DISCOVERY THEORY: The entirely different principles underlying
the newer "discovery" view that the time when the statute begins to run is
when the plaintiff discovered or reasonably should have discovered the
negligence. Some courts adhere to a more liberal view, to the effect that
the statute of limitations begins to run on a negligent design claim
against an architect when the plaintiff discovers, or should have
discovered, his damage or injury.
c. LIMITATION: Note this body of law applies only to negligent-design
claims, design-function claims, not to supervisory services, overseeing
construction, nor other types of claims.
d. POLICY RATIONALE: The purpose of statutes of limitation is to
compel the exercise of a right of action within a reasonable time and to
suppress stale or fraudulent claims. So, what sets a statute of limitations
in motion?
e. REASON FOR CHANGE OF TRADITIONAL VIEW: Under the
traditional rule, the statute of limitations begins to run from the time of the
negligent act. But many courts in recent years felt this caused harsh
consequences. Inequities often arise when the time of the injury and the
time of the negligent act do not coincide. Such is the situation in
architectural malpractice suits, and especially in actions based on
negligent design claims. In view of the general rule, how can a successful
action be brought against an architect when the negligence of his work,
and specifically his designs, does not come to light for a long period of
time after he performs his services?
2. View that statute begins to run when plaintiff discovers, or should
have discovered, damage or injury
a. INTRODUCTION: In the following cases involving the time of
accrual of a negligent design claim against an architect, it was held or
recognized that as a result of the applicability of the "discovery" rule, the
action accrued and the statute of limitations began to run on the action
only when the plaintiff discovered, or should have discovered, his
damage or injury resulting from the architect's negligence.
b. Auster v. Keck, Illinois, 1975: The plaintiff homeowners alleged
faulty design by the architect who had designed their home. The plaintiffs
asserted that the ceilings of the home began to collapse some 2 years
after they had purchased the home, but 11 years after construction of
the house. The plaintiffs alleged that they had no knowledge of any
latent defect or any means of learning of any such defect until after the
purchase of the premises, when the ceilings collapsed. The court
recognized that the real question was when the statute of limitations
began to run—when the alleged architectural malpractice occurred, or
when the victims discovered it, as the ceilings collapsed. The court
applied the emerging "discovery" or "knew or should have known" rule to
the facts of this case, and held that the statute did not start to run until
the ceiling fell, which was well within the time period for filing the lawsuit.
c. Society of Mt. Carmel v. Fox, Illinois, 1975: An architect who had
designed a school was told by his client, after construction was complete,
that the building was suffering cracks, bulging, movement, and
separation of the plaster, masonry, and walls. The architect assured his
client that those were simply maintenance problems. The client then
went about incurring considerable expense in attempting to repair the
defects, and eventually commissioned an the inspection report issued by
the contractors' association. The report concluded that the various
difficulties with the structure were the result of faulty design, which
alerted the corporation to the fact that the cracking was the result of
failure to include expansion joints, rather than being merely a
maintenance problem as the architect had indicated. Within one year of
receiving that report, the client filed a malpractice lawsuit against the
architect. At this point, more than five years had elapsed from the time
construction of the school had been complete. The architect moved the
court to dismiss the lawsuit based on the statute of limitations. But the
court denied the motion, explaining that the lawsuit was filed within one
year from the time when the plaintiff knew or should have known of the
existence of the allegedly defective design. That time period began
running not when construction was complete, and not even when the
plaintiff began noticing alleged defects – bu instead it began running
when plaintiff received the report from the contractors’ association.
3. Arizona Case, Dryden v. Bell, 1988
a. Parties
• Robert M. Dryden and Lauralee Dryden were the purchasers of a
newly constructed home.
• Samuel Bell and Mita Bell were the previous owners/builders of the
home.
• Dale Naegle was an architect who designed and prepared plans for
the main residence to be constructed for the Bells.
b. Factual Background:
In 1978, Samuel Bell, a retired rancher, began construction on 34 acres
of land of a 4700 square foot main residence, a three-bedroom, two-
bath, 1800 square foot foreman's residence, and a freestanding office
with toilet, shower, kitchenette and pulldown beds. Bell developed 22
acres of the land into irrigated pasture separated by fences and
constructed a lake to store surplus well water and collect runoff water
from the roof of the main residence. He also constructed a dike which ran
along the north edge of the property bordering Tanque Verde Wash.
Bell initially intended to build the house as his own personal residence
and improve the acreage for his own use. He supervised construction
with the help of employees and subcontractors for various phases of
construction. Bell, in the past, had built several houses which served as
his personal residences, plus some labor houses on his farms. None of
these houses were built for sale.
During the course of construction, Bell learned he could not live in the
area because of serious health problems. Therefore, in November 1980,
Bell listed the property for sale. The Drydens signed a purchase
agreement on March 30, 1982, with a closing date of June 1, 1982, and
took possession July 1, 1982. After taking possession, Drydens began
noticing problems in the main residence and with other improvements,
including: The roof of the main residence leaked because of the gutter
system, causing water damage; The windows and sills leaked;
Electrolysis occurred in the pipes in the main residence causing
deterioration and corrosion of the pipes resulting from joining dissimilar
metals without dialectic unions; There were problems with the electrical
system; There were problems with the water distribution system leading
to the lake; During a flood in October of 1983, several acres of land
washed away which the Drydens claimed occurred because the dike did
not adequately protect the land.
As a result of these problems, the Drydens claimed damages of over
$200,000. They filed their lawsuit on April 20, 1984. The Drydens were
unable to make a successful legal claim against Bell because he was not
a commercial builder-vendor, since his personal intention during
construction was to live in the house. Therefore, the Drydens sued
Naegle, the architect, for defective design.
c. Issue: Dale Naegle claimed the two-year statute of limitations had
expired because more than two years before construction was complete.
Therefore, Naegle claimed that the Drydens could not successfully sue
him even if any design-defect had occurred.
d. Governing Law: The statute of limitations is a provision of the law
requiring that suit be commenced on certain types of claims within a
prescribed period of time. Otherwise, suit is barred forever.
e. Application of Law to Facts at Hand:
The court ruled that in a case like this one, the time limitation placed
upon the plaintiffs began to run when the plaintiffs first knew, or by the
exercise of reasonable care should have known, that there was
negligence on the part of the architect Naegle. In this instance, the
applicable limitation period is two years, and defendant Naegle claimed
that suit was barred because an occupant of the house knew, or by the
exercise of reasonable care should have known, more than two years
before the commencement of this suit if any design defect had occured.
But the court ruled that the statute of limitations could not begin to run in
this case until 1) the Drydens sustained some injury from the alleged
negligence of Naegle, and 2) until Drydens were able to bring suit
against the Bells. The defendant claimed that the Drydens knew, or
should have been able with reasonable diligence to discover, any defects
back in 1980 or 1981 upon inspecting the property. But the judge
rejected that argument, saying that the Drydens had no cause of action
at that point because they did not yet own the property. Only after
purchase and possession of the property could they have discovered the
defects resulting from the negligent design of the roof. This occurred in
July of 1982. Within two years following this date, the Drydens filed their
lawsuit. That is within the statute of limitations.
f. Conclusion: The home-purchasers’ case was allowed to move to
trial because the two-year statute of limitations in their defective-design
claim against the architect could not begin to run until they sustained
some injury from the architect's alleged negligence and were able to
bring suit against him.
4. Practice Pointers:
• Default: Arizona law provides for various periods of limitation for
design defect and construction defect. After this time period has
elapsed, the homebuyer cannot bring forth a defect claim.
• Exception: However, Arizona allows parties the freedom to shorten
this limitation period by contract.
• Example: The architectural agreement can shorten the architect’s
limitations period by including such language as, “The parties agree that
the limitations period for bringing any claim, lawsuit, or action with regard
to this agreement shall expire one year after the city issues a certificate
of completion on the project. The parties agree and acknowlege that the
property-owner has full and unabridged ability to inspect the project for
defects in design and otherwise, and has the duty to undertake such
inspection before the agreed-upon one-year limitations period expires, or
be forever barred from making any claim against the architect.”
ARCHITECT’S LIABILITY FOR JOBSITE INJURY, BASED UPON
ARCHITECT'S ALLEGED FAILURE SUPERVISE
1. SUMMARY: Under what circumstances can a person injured
during the course of construction work recover on the basis of the project
architect's alleged negligence in failing to carry out supervisory
responsibilities? In cases dealing with the question of whether liability for
personal injuries suffered in the course of construction may be
predicated upon an architect's failure to carry out supervisory
responsibilities, the primary issue has generally been whether the
architect owed a duty of care to the injured party. The answer to this
question has normally turned upon the extent of the architect's
supervisory responsibilities under the contractual provisions, or in the
light of the conduct of the architect, or other facts and circumstances of
the case.
a. DEFAULT DUTY IS LIMITED TO SUPERVISE FOR CONFORMITY
WITH PLANS: Courts have approached the duty question from the
standpoint of whether the architect's supervisory responsibilities were
limited to, or exceeded, the mere obligation to assure to the owner of the
structure that it would conform to plans and specifications. Several
decisions have specifically stated that, normally, conformity with plans is
the object of architectural supervision, and the courts have generally
agreed that when this is the case, no duty can arise in favor of a person
injured at the construction site. In order for an injured plaintiff to hold the
architect liable, the architect's responsibilities must transcend the mere
assurance of conformity.
b. WRITTEN CONTRACTUAL DUTY TO ENSURE JOBSITE
SAFETY: Where the architect expressly assumed a responsibility for
safety, the courts have found that a duty existed and the architect was
responsible for jobsite injuries. In these cases, the architect, in writing,
assumed the obligation to control the day-to-day methods and
procedures utilized by contractors in doing the work. Liability is, or is not,
established under contractual provisions imposing supervisory
responsibilities upon the architect.
c. TACIT-ACTION DUTY TO ENSURE JOBSITE SAFETY: The courts
have also determined liability in the absence of, or without regard to,
written contract provisions, where the architect had voluntarily assumed a
duty apart from the written contract terms.
d. CREATION-OF-HAZARD DUTY TO ALEVE HAZARD: Where the
architect engaged in positive acts of misfeasance, such as actually
directing the creation of the hazardous condition which caused the injury,
the injured plaintiff has been able to recover from the architect,
regardless of written contract language or lack thereof. Many courts have
indicated that an architect's prior knowledge of a hazardous condition is,
or can be, an important element in finding the existence of such a duty.
e. DUTY OF REASONABLE CARE: Once it has been determined
that the architect owed a duty of care to the injured plaintiff, the courts
have defined that duty in standard negligence terms, alluding to a duty to
exercise reasonable care, or the ordinary skill of the profession, for the
protection of anyone lawfully upon the premises whose injury is
reasonably foreseeable as a result of negligent supervision.
2. SAMPLE CASES: The cases have involved charges of negligence
in a variety of physical circumstances, including allegations that the
architect was at fault in permitting or directing the premature removal of
supports, or the use of inadequate supports which precipitated the fall of
a building or structure under construction; in permitting unsafe temporary
scaffolding or platforms for the use of workmen;[FN26] in permitting an
excavation to continue despite inadequate shoring; in permitting the use
or installation of improper materials and equipment; and in permitting
unguarded holes to remain in the floor of a building being constructed.
a. Erhart v. Hummonds, Arkansas, 1960: One worker was injured
and three others were killed when an excavation wall collapsed, burying
the workmen. The injured worker, and the widows of three others, sued
the project architects, claiming the architects had been negligent in
failing to stop the work upon discovery of the unsafe shoring of the
excavation wall. During the job, the architects' field supervisor had
questioned the adequacy of the shoring prior to the accident, but had
failed to stop the work when the contractor assured him that the problem
would be corrected. The contract gave the architects general
supervision of the project and allowed them an extra fee therefore, and
provided that the general contractor would do such shoring to protect
workmen as might be specified by the architects in accordance with
governing law. The contract authorized the architects to stop the work
whenever necessary to insure the proper execution of the contract. The
court ruled in favor of the workmen, noting that an ordinance required
contractors to guard excavations against danger to life. The court
predicated its judgment against the architects upon the supervisory
responsibilities they had assumed under their contract with the
landowner. The court stated that because they had prior knowledge of
the hazardous condition of the wall, they owed a duty of care to the
workers.
b. Geer v. Bennett, 1970, Florida: A concrete mason who was an
employee of the contractor fell through a hole in the floor of a building.
Prior to the accident, the architects had observed the absence of
guardrails and had instructed the contractor to install them, but had
taken no further action even though they knew that their directions had
not been followed. The mason sued the project architects, alleging that
his fall was caused by the architects' failure to see that guardrails were
installed. A regulation of the state industrial commission specified that
construction contractors provide guardrails for all floor openings. The
architects' contract obligated them to provide detailed supervision to
assure that the work was progressing in accordance with plans and the
requirements of regulatory agencies. The court ruled in favor of the
mason, emphasizing that by agreeing to see that the contractor
conformed to the requirements of governmental agencies, the architects
had assumed the responsibility to insure that the work was proceeding in
accordance with the guardrail regulation. The court said the architects
owed a duty to the mason, since a supervisory architect must exercise
ordinary care for the protection of any person who foreseeably may be
injured by his failure to do so.
c. Day v. National U. S. Radiator Corp. 1961, Louisiana: An
employee of a subcontractor was killed by the explosion of a boiler which
did not contain a pressure release valve. His widow sued the project
architect, claiming that the accident had resulted from the architects'
negligent failure to inspect and supervise the installation of the boiler.
The contract said the architectural firm would supervise the work "to
insure strict conformity with drawings." The court sided with the architect
and threw out the widow’s lawsuit. The court stated that the primary
object of the contractual provision was to insure to the owner that before
final acceptance of the work, the building was completed in accordance
with specifications. The architects had no obligation to supervise the
actual methods of doing the work, and therefore they owed no duty of
care to the decedent and no obligation to supervise the installation of the
hot-water system.
d. Olsen v. Chase Manhattan Bank, 1961, New York: A foundation
contractor's employee was struck by a pneumatic drill which fell from a
temporary working platform at the construction site. The platform in
question rested upon a pre-existing foundation caisson which was
supposed to be removed under the architects' plans. The worker
contended that the architects, under their contract, had control over the
platform and drill and breached a duty to exercise care as to the
maintenance of such items. But the court held that the architects had no
duty to protect workers from defects in temporary construction, and
consequently dismissed the worker’s case. The court pointed out that the
architects' sole supervisory functions under the contract were to insure
performance of the work in accordance with plans, and to see that
standards of safety were met in regard to permanent construction, but
not with respect to temporary platforms. The contract required the project
architects to exercise such general administration and supervision of the
work as might be required to furnish the owner with a finished building in
conformance with drawings and specifications, but not to exercise
general supervision nor safety supervision.
3. Arizona Case: Easter v. Percy, 1991
a. Parties:
• Dillingham Heavy Construction, Inc. was a general contractor hired
by the City of Phoenix to build the Union Hills Water Treatment Plant.
• James Easter was a carpenter employed by Dillingham on the
project.
• John Carollo Engineers was an engineering firm specializing in the
design of waste water treatment projects. The city hired Carollo to furnish
“construction administration and other related services” on the project.
• Oscar Percy was an employee of Carollo, who was assigned as
chief inspector for the project.
b. Factual Background:
Carollo's agreement with the city spelled out the scope of inspection
services that Carollo was to perform. The agreement provided that
Carollo would furnish the services of a competent engineer and
inspectors. The agreement stated that Carollo's inspectors would inspect
the contract work for compliance with contract plans and specifications.
The agreement contained the following limiting language:
A. INSPECTION
Inspection services shall be furnished by John Carollo Engineers,
hereinafter referred to as the Engineer, as set forth below.
1. Furnish the services of a competent resident engineer and resident
inspectors as shown on Exhibit “C” to inspect the contract work for
compliance with contract plans and specifications. The Engineer will be
responsible to coordinate and perform inspection activities including
necessary quality control testing required by the contract.
Inspection by the Engineer shall not be considered as direct control of
individual workman and his work. The direct construction control and all
job safety shall be solely the contractor's responsibility.
Dillingham, the general contractor, passed some of its responsibility for
work safety on to the parties with whom it subcontracted. For example,
the subcontract with Bear River required Bear River to comply with all
safety requirements, inspect the work site for safety violations, and
assume sole responsibility for providing a safe place to work.
James Easter was injured when a piece of rebar fell on him while he was
removing a concrete form from a wall. It fell from a structure that had
been made of many pieces of rebar tied together with thousands of ties.
The rebar had been assembled and installed by Bear River.
Oscar Percy had inspected and accepted the rebar structure as
complying with the plans and specifications. Percy had inspected it both
while it was on the ground and after it had been lifted into place to form a
wall. He had found that it met the contract plans and specifications. In
his testimony, he stated that he had not noticed any rebar pieces to be
improperly tied, but also noted that it would have been unlikely that he
would have spotted such a condition. He explained that, in the inspection
process, he made a general determination of whether enough rebar was
used and whether it was spaced and tied properly, but that he could not
have individually checked each of the thousands of ties. According to
Percy, who had been an inspector on construction projects for more than
twenty years, no closer inspection of the ties was required by an
inspector.
c. Issues: All the parties agreed that defendants had no right or duty
to control the details of how the general contractor and subcontractors
actually performed their work. However, the parties disagreed regarding
whether, and to what degree, defendants had a duty to inspect and
supervise the work, and to prevent jobsite injuries. The plaintiff argued
that the defendants owed him such a duty under (1) its contract to
inspect the project. (2) He also argued that, even if the contract did not
impose a duty, the defendants, by their actions, voluntarily undertook to
protect him and were negligent in the way they carried out this
responsibility.
d. Governing Law:
• To maintain an action for negligence, a plaintiff must show that
there is a duty or obligation, recognized by law, which requires the
defendant to use a particular standard of care to avoid or prevent injury
to the plaintiff.
• A defendant who owes no duty to the plaintiff cannot be liable to
him even if the defendant acts negligently.
• The issue of duty is usually one for the court as a matter of law,
meaning in statutes or court decisions.
e. Parties: Application of Law to Facts at Hand:
The court examined whether the contract between the defendants and
the city imposed a duty on the defendants to safeguard workers against
on-the-job injuries.
Easter cited to Arizona law to the effect that a contractor is liable for
injuries to persons on the job site, other than his own employees, if the
contractor has retained supervisory control over the method and manner
of completing the details of the work. That principle also applies when
the contract gives the contractor the right and duty to initiate and
oversee safety precautions on the project.
The Court decided that body of law did not apply to Easter v. Percy,
because the facts of this case are distinctly different from the facts of
those cases. In this case, the defendants had no contractual
responsibility for safety precautions, did not undertake to exercise any
control for the sake of safety, contractually disavowed any such role, and
had no contractual right to stop work which was proceeding in an unsafe
manner. Therefore, the plaintiff could not look to the contract to establish
liability. The court concluded that the defendants in this instance owed
no duty to the plaintiff to protect him against bodily injury.
The plaintiff next argued that, even if the contract did not create a duty to
him on the part of the defendants, they were nonetheless liable because
they voluntarily assumed a responsibility for safety. Easter based this
argument on Oscar Percy's statement that when work did not conform to
the plans and specifications, he required that it be corrected. Easter said
that the piece of rebar which fell was improperly tied and, therefore, did
not conform to the plans and specifications, and he would not have been
injured had Percy done his job properly.
To support his argument, he cited to law to the effect that one who
undertakes, to render services to another which he should recognize as
necessary for the protection of a third person, is subject to liability to the
third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if (a) his failure to exercise
reasonable care increases the risk of such harm, or (b) he has
undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third
person upon the undertaking.
The court rejected Easter’s argument three reasons:
First, the services were inspection for compliance with the plans -- not for
safety. Therefore, the argument that the defendants should have
recognized that they were necessary for the safety of a third person is
weak. Nothing in the evidence suggests that the defendants undertook to
inspect for safety.
Second, while the plaintiff asserted that he relied on the defendants to
inspect for the defect that resulted in harm to him, he did show any
evidence to substantiate that allegation, such as a contract between his
employer and the engineer showing that his employer believed the
defendants were going to inspect for safety.
Third, and most important, the plaintiff presented no evidence that the
defendants did not exercise reasonable care in inspecting the work to
see that it conformed to the plans. The applicable standard of care for an
engineer is to “exercise the degree of skill, care, and diligence as
engineers ordinarily exercise under like circumstances”. Expert
testimony is ordinarily required to establish whether the standard has
been met. In this case, Percy testified that he determined whether
enough rebar was used, that he did not check each of the several
thousand ties, and that this conduct met the standard of care for the
construction industry. This satisfied the defendants' burden of making a
prima facie showing that the applicable standard of care was met. The
burden, then, shifted to the plaintiff to raise an issue as to the standard
of care normally exercised in performing services such as those
undertaken in this case. That issue is usually raised if the plaintiff
presents an expert witness who testifies that the standard of care
normally exercised is actually different than what the defendant
presented. In this case, Easter presented no such witness nor other
evidence.
f. Conclusion: The plaintiff’s case was dismissed. The contract
between the engineering firm and the city imposed no duty on the firm to
safeguard construction project workers against on-the-job injuries, and
the carpenter failed to establish that the engineering firm or its employee
had breached any sort of common-law duty by assuming responsibility
for safety and subsequently breaching that duty.
4. Practice pointers
a. A supervising architect, or the attorney who represents him,
should seek to avoid liability to persons injured in the course of
construction, or at least to lessen the effects thereof, by a careful initial
drafting of the contract with the landowner.
b. The American Institute of Architects has issued a variety of
standard forms containing provisions which disclaim any duty to injured
persons on the part of the architect, which put the responsibility for
safety upon the contractor, and which require that the contractor
indemnify the architect for losses caused by the contractor's negligence.
Specifically, the standard forms no longer refer to the architect's
responsibilities as "supervision," but speak in terms of "administration of
the contract," and generally provide that the architect will make periodic
visits to the work site solely to guard the owner against defects in the
work, and to see that construction is proceeding according to plans. It is
also generally provided that the architect will not be required to make
exhaustive or continuous on-site inspections, and will not be responsible
for construction means, methods, techniques, or procedures, or for
safety precautions in connection with the work. Rather, the contractor is
given exclusive responsibility for such matters, and is required to
indemnify and hold the architect harmless for any claims arising from the
contractor's negligence resulting in bodily injury. Also, the contractor is
required to maintain disability and workmen's compensation insurance.
c. However, architects have frequently been unsuccessful in
contractually limiting their liability. Moreover, serious problems can arise
out of any attempt to obligate the contractor to indemnify the architect.
For example, where the injured plaintiff is an employee of a contractor,
as has usually been the case in the decisions collected herein, any
indemnity action against the employer may be barred by the exclusive
remedies clause of the local workmen's compensation act, or at least
limited to a recovery of the maximum benefits payable thereunder.
Furthermore, such an action might be barred under the common-law rule
prohibiting indemnity between joint tortfeasors, although a supervising
architect's right to seek indemnity has been upheld under an exception to
the rule, in favor of a co-tortfeasor who has merely been passively
negligent.
d. When the plaintiff relies on provisions of the contract between the
owner of the construction project and the contractor to establish that the
architect’s inspection or supervision responsibilities included safety at the
construction site, provisions of the contract between the owner of the
project and the architect specifically relieving the architect from the duty
of ensuring construction site safety will be entitled to greater weight, and
therefore should support a claim by the defendant that he did not have
such a duty.
e. It may be possible for the defendant architect, by presenting
evidence that the contractor was responsible for safety matters, to show
that the architect had no duty to ensure safety at the construction site.
Contractual provisions specifically stating that it is the contractor's
responsibility to provide for the safety of workers will be sufficient for this
purpose.
f. Factors other than contractual provisions may support a claim that
safety at the construction site was the duty of the contractor. Evidence of
the contractor's actual knowledge of the safety hazard that caused the
injury for which recovery is sought may support a contention that the
contractor had a responsibility to take action to protect workers from the
hazard.
g. If the architect notices a hazardous condition, in pointing out such
condition to the contractor, the architect should always preface his
observation with a statement to the effect that, “Although XYZ
Architectural Firm’s duties on this project do not include any type of
safety-related concern, and the contractor alone is responsible for
jobsite safety, I did happen to notice a wobbly piece of scaffolding and I
would recommend that the contractor ensures that scaffolding is repaired
or replaced.”
h. Summary of Defenses:
□ The plaintiff is not one to whom the defendant owes a duty because the
contract for professional services limited the nature or scope of the
architect's or engineer's services to “conformance with plans, and did not
include construction-supervision duties.
□ An exculpatory or indemnification clause in the contract shifts the risk
from the architect or engineer to the client or owner.
□ Reasonable, skilled, and prudent professional services were provided
by the architect, even if an injury occurred at random.
□ The injury resulted from the negligence of somebody other than the
architect, such a supplier who supplied shoddy materials, or a contractor
who failed to supervise his employee.
□ The plaintiff was also negligent, contributing to his or her own harm or
damages.
□ The architect's supervisory conduct met recognized and approved
standards of practice in the locality where the project was designed or
constructed.
Real Estate Developer’s Claim that Architect was Negligent in
Preparing Plans or Specs
1. SUMMARY:
a. In determining whether a defendant archiect should be held liable
for negligence in preparing plans, courts refer to the “reasonable duty of
care”:
i. Architects have a duty to use ordinary skill, care, and diligence in
rendering their professional services and must use their skill, care, and
diligence to provide sufficient and adequate plans.
ii. The law imposes upon architects the obligation to exercise a
reasonable degree of care, skill and ability, which generally is taken and
considered to be such a degree of care and skill as, under similar
conditions and like surrounding circumstances, is ordinarily employed by
their respective profession; this standard of care properly is the subject
of expert opinion.
iii. An engineer owes a duty to exercise the degree of professional
care and skill customarily employed by others of his profession in the
same general area.
iv. Architects have a duty to exercise ordinary professional skill and
diligence in the practice of their profession.
b. EXAMPLES: A breach of the standard of care may be shown by
evidence that an architect or engineer failed to: consider, inspect, or
provide for specific soil conditions, design stairs or walkways so that
persons are given visual notice of their existence, indicate on plans the
location of underground electric or gas lines or water mains, inadequate
fire retardation walls, a ventilation system which permitted snow to enter
a free space above offices and classrooms, which caused damage to
ceiling tile and insulation.
c. ELEMENTS: A case in a negligence action against an architect
based on the preparation of defective plans or specifications requires
proof:
i. that the architect or engineer owed the plaintiff a duty to adhere to
the accepted standard of care in the preparation of plans and
specifications;
ii. of the appropriate standard of care;
iii. that the architect or engineer failed to adhere to the accepted
standard of care; and
iv. that the architect's or engineer's failure to adhere to the standard
of care was the proximate cause of the plaintiff's injury or loss.
2. SAMPLE CASES:
a. A.E. Investment Corp v. Link Builders Inc, Wisconsin, 1974: The
plaintiff was a corporation which operated a supermarket. The building
settled and cracked to such an extent that it became unusable. The
plaintiff brought suit against the architect who designed the building
seeking recovery of economic losses, including past and future profits;
loss of fixtures, merchandise, and equipment; and loss of reputation and
good will. The plaintiff alleged that the architect failed to consider the
subsoil conditions in designing the building. The court said that it was
foreseeable to the architect that such an omission could result in injury or
harm to the operator of the supermarket.
b. Hiatt v. Brown, Indiana, 1981: An architect had designed
expansion of an airport terminal, including an airport pedestrian ramp.
The architect was aware of airplane parking procedures which subjected
the ramp to jet blast. The architect had discussed potential jet blast
problems with architects for the airport authority and the airline prior to
the time the architect's expansion plan was submitted for their approval.
After completion of construction, a pedestrian was blown down the
walkway by the jet blast from a nearby airplane. She sued the airport,
which in turn sought indemnity from the architect. The architect
defended himself by claiming that the airport was aware of the defect but
took no steps to remedy it, and therefore the airport should be soly
responsible. But the court held that the architect was negligent in failing
to provide a jet blast protection fence. The court held against the
architect, finding that he breached of the standard of care because he
was aware of relevant conditions or circumstances which the plans or
specifications failed to provide for or take into account. Despite the
architect's knowledge of this condition and adequate time to change the
ramp design, the plans he prepared did not provide for a protection
fence.
c. In General Trading Corp v. Burnup & Sims Inc, 1975, Virgin
Islands: An architect was determined to have been negligent in
preparing plans for the modification of a roof. The architect produced
sketches which were found to be ambiguous as to the proposed
modification. The sketches were misinterpreted by the fabricator of a
metal frame for the roof, resulting in delay in completion of construction.
The plaintiff was able to establish a breach of the standard of care by
showing that the architect's plans were ambiguous or unclear and, as a
result, were incorrectly interpreted by the party responsible for
implementing them.
3. Arizona Case: Resolution Trust Corporation v. Western
Technologies, Inc., 1994
a. Parties:
• Resolution Trust Corporation (RTC) was conservator for a failed
savings and loan called Southwest Savings and Loan Association.
• Western Technologies was a geotechnical engineering firm that
had been hired by the failed S&L to conduct a foundation design
investigation
b. Factual Background: In May 1983, WTI entered a contract with
Southwest Savings and Loan Association (Southwest) to perform
geotechnical services for a proposed office development called
Fairmount Place. The agreement provided in part:
The purposes of our geotechnical services are to evaluate subsurface
soil and groundwater conditions, recommend procedures for the grading
and underslab treatment in the building and parking areas, recommend
bearing pressures and estimate settlements for the moderately shallow
spread footings and belled caissons, present surface and subsurface
drainage recommendations, and recommend flexible pavement design
thickness(es) for the at-grade parking lot.
In June, August, and November 1983, WTI issued geotechnical reports.
Its June report stated in part:
Although the existence of subsurface facilities such as seepage pits,
drywells, and underground utilities was not apparent, their presence may
be anticipated. Therefore, the exposed excavations should be inspected
for such features during construction.
At the time WTI performed its work, two gas pumps and four underground
storage tanks (USTs) were present at the Fairmount Place site. In
addition, one of the businesses on the site was a street sweeping
operation that fueled its own vehicles. The contractor removed two of the
USTs during construction of Fairmount Place.
In 1988, Southwest agreed to sell the Fairmount Place site to Facet
Financial Corporation (Facet). In connection with the proposed sale,
Thomas-Hartig & Associates, an engineering firm, completed an
environmental assessment report. The report disclosed the presence of
USTs and soil contaminated by petroleum hydrocarbons and other
hazardous substances at the site. Facet refused to consummate the sale
when the USTs were discovered.
RTC, acting as Southwest's conservator, filed a lawsuit against WTI on
November 6, alleging that WTI knew or should have known of the
existence of the USTs and contamination of the site and that WTI
breached its agreement with Southwest by failing to discover or to
disclose the USTs and contamination. RTC sought to recover damages
against WTI on the basis of breach of contract and negligence.
c. Issues: WTI requested that the court dismiss RTC’s lawsuit, relying
upon affidavits from three expert engineers who opined that the standard
of care for a geotechnical engineer did not include responsibility to locate
and identify USTs or to discover soil contamination. The experts
concluded that WTI had not breached the standard of care in its
performance of the agreement.
RTC responded by deposing the experts, and filed an argument
attempting to show, through the experts' deposition testimony, that WTI
breached the standard of care. RTC asserted that WTI negligently failed
to include notice of the USTs in its report. RTC asserted that WTI's own
experts provided the evidence by testifying that (1) if a geotechnical
engineer knows that USTs are present, its report should include that fact
because USTs can affect the soil's suitability for construction and (2) a
geotechnical engineer should know of the existence of USTs when gas
pumps and a refueling operation are located on site. Because these
clues that USTs were on the site existed when WTI prepared its report,
RTC claimed that a trial should be held regarding whether WTI
negligently failed to discover and report them.
d. Governing Law:
• The essential element of a professional malpractice claim is a
plaintiff's damage resulting from a defendant's conduct below the
applicable standard of care. Expert testimony is usually necessary to
establish the standard of care.
• In the typical situation between client and professional, the law
implies a promise by the professional to render competent service. As a
matter of public policy, architects , and other professionals owe special
duties to their clients, and breaches of those duties are generally
recognized as torts. The essential nature of actions to recover for the
breach of such duties is not one arising out of contract, but rather one
arising out of tort-breach of legal duties imposed by law.
• In some cases, however, an action against a professional can be
founded in contract: A breach of contract action arises out of the
violation of a specifically enumerated duty. Where the promise is created
by the contractual relationship, and would not exist “but for” the contract,
then breach of it sounds in contract. Absent some special contractual
agreement between those in the professional relationship, a professional
malpractice action does not arise from contract, but rather from tort.
e. Application of Law to Facts at Hand:
The scope of WTI's work as outlined in the agreement was to “evaluate
subsurface soil and groundwater conditions.” Each of WTI's expert
witnesses stated that WTI performed its services within generally
accepted standards of practice, that the applicable standard of care did
not require WTI to provide environmental site assessment services as
part of a foundation design investigation, and that WTI had no
responsibility to discover or identify any underground USTs or site
contamination. The expert witnesses also opined that WTI would have
been responsible to discover and identify USTs or contamination only if
WTI had been retained specifically to perform an environmental site
assessment. RTC contended that the experts' subsequent deposition
testimony raised the inference that WTI should have discovered and
reported the USTs to Southwest. The court disagreed with RTC.
WTI's experts all testified in their affidavits that under its contract with
Southwest, “WTI had no responsibility to discover or identify any
underground storage tanks which may have been present at the
Fairmount Plaza [sic] site••••” RTC attempted to take issue with this
opinion by pointing out that in their deposition testimony, the experts
agreed that the presence of a UST is part of the subsurface soil
condition that a geotechnical engineer should evaluate. RTC pointed to
testimony in which the experts stated that if a geotechnical engineering
firm discovered an underground structure, such as a UST, then it “would
mention them in its report as it would affect the support of the
foundations of the building or ••• structure that it is helping to design.”
That testimony, however, merely indicated that USTs can be important
because their presence could affect subsurface conditions. The
testimony did not address whether the geotechnical engineer's standard
of care requires it to discover the tanks. WTI submitted uncontroverted
evidence that it was not required to do so as part of its geotechnical
investigation and analysis. RTC submitted no controverting evidence and
therefore its lawsuit should be dismissed.
Besides the tort claim of negligence, RTC contended that WTI breached
its contract to “evaluate subsurface soil and groundwater conditions.”
RTC asserted that discovering a UST clearly falls within the meaning of
that phrase. The Court again disagreed with RTC, holding thast no
special contractual agreement or undertaking existed. WTI agreed to
“evaluate subsurface soil and groundwater conditions.” The contract
contained no specific agreement to look for USTs or other underground
structures. Thus, this action for malpractice sounded strictly in tort, and
RTC's breach of contract claim necessarily failed.
f. Conclusion: RTC’s lawsuit against the engineering firm should be
thrown out because the firm was hired to conduct foundation design
investigation, rather than environmental site assessment, and thus the
engineering firm’s standard of care did not require discovery and
disclosure of underground storage tanks or related soil contamination,
and it did not commit malpractice and it did not breach any contractual
duty toward RTC.
4. Practice Pointers: An architect sued for professional negligence
may defend the action on any of the following grounds, among others:
a. The contract for professional services limited the nature or scope
of the architect's services. The contract should always disclaim any
promise of perfect a perfect plan or a satisfactory result. An architect's
work can be inaccurate or imperfect without being an actionable
deviation from the standard of care observed by design professionals.
b. An exculpatory or indemnification clause in the contract shifts the
risk from the architect to the client or owner. Reasonable, skilled, and
prudent professional services were provided by the architect, even
though the results were less than satisfactory. An architect's obligation
does not guarantee a perfect plan or a satisfactory result. There is no
assurance that miscalculations will not occur. Liability is considered to
rest only on unskillfulness or negligence and not upon mere error of
judgment.
c. Defects in the structure resulted from the negligence of a third
party, such as a contractor or a manufacturer of materials used in the
structure. Architects should practice thorough record-keeping before,
during, and after construction to note such events as a contractor failing
to perform work according the plans, a property-owner’s neglect of the
site, etc.
d. The alleged negligence was not the proximate cause of the harm
or damages. The plaintiff was also negligent, contributing to his or her
own harm or damages. Architects should keep files for correspondence
with the owner, the contractor and subcontractors, government agencies,
and others.
e. The architect's conduct and performance met recognized and
approved standards of practice in the locality where the project was
designed or constructed. In preparing plans, the architect should make
and keep notes of appicable ordinances and other bases on which the
designs are based, such as trade-organization guidelines, publications
by public-service organizations. Frequently standards pertaining to the
practice of architecture may be set by ordinances. Additional standards,
which may be accepted by courts as persuasive evidence or may even
be held to have controlling legal effect in some cases, may be found in
the publications of various trade or public service organizations, such as
the American Institute of Tile and Ceramics, or the Institute of Steel
Construction. There are specifications files that show the source for
various specifications of materials as recommended by the
manufacturers or trade organizations in that field. In addition, there are
inspection reports, personal diaries, calculation files, and a series of
drawings and renderings showing what plans have been considered and
rejected.
LIABILITY OF PROJECT ARCHITECT FOR ECONOMIC DAMAGES
SUFFERED BY CONTRACTOR
1. Summary
a. ISSUE: Under what circumstances, can an architect be held
directly liable to a contractor upon the project who has suffered economic
damages allegedly as a result of the architect's negligent preparation of
plans?
b. PREVIOUS LAW: Historically, a direct contract between the
architect and contractor was required before a cause of action could
arise from the breach of a duty from the architect to the contractor.
However, this requirement has been gradually eliminated in most
jurisdictions. Thus, the courts of several jurisdictions have indicated that
privity of contract cannot be applied to shield an architect from liability to
a contractor who has suffered economic damage as a result of the
negligence of the architect. (It has been so held with respect to causes of
action arising both from negligent supervision and from the negligent
preparation of plans and specifications, personal injury or death by a
third person, a sureity’s claim for negligent issuance of a payment
certificate, and so forth.)
c. ARBITRATION IMMUNITY: In regard to claims that an architect
intentionally harmed the contractor, it has long been recognized that, an
architect acts as a quasi-arbitrator when he seeks to resolve disputes
between an owner and a contractor, and that, as such, he enjoys
immunity from private lawsuits predicated upon his decisions. In holding
that an architect's liability for economic harm to a contractor was
supportable on the basis of willful misconduct such as interference with
contractual relations, several courts have indicated that the arbitrator's
immunity does not extend to intentional acts performed without the scope
of the architect's role as quasi-arbitrator.[FN14] Conversely, another
court has held that the particular conduct of the architect, that is, an
alleged willful refusal to issue a completion certificate, was within the
architect's duties as a quasi-arbitrator and, accordingly, barred an action
against him by a contractor who claimed to have suffered economic
damages.
2. SAMPLE CASES
a. Los Angeles Testing Laboratory v. Rogers & Rogers, 1958,
California: On a school construction project, the contractor sued the
project architect, who claiming that the architect misinterpreted certain
concrete tests and had thereby approved the installation of inadequate
concrete structural forms, with the result that the contractor suffered
damages in compensating for the defective forms and in the consequent
delay in completing the work. The court held that the negligent breach
by an architect of his contract with the owner gives rise to a claim by a
contractor who allegedly has been damaged. The court stated that the
architect's authorization to incorporate the defective concrete forms
implied a representation that he had inspected the forms and reviewed
the tests, and had found that they conformed to specifications. The court
pointed out that the architect was contractually obligated to the owner to
prepare plans and specifications and to supervise the construction, and
that the contractor's own agreement provided that the architect not only
had general supervision, but also the authority to stop the work
whenever necessary to insure specific performance. Rejecting the
architect's contention that since no contractual relationship existed
between him and the contractor, he owed no duty of care to the
contractor, the court noted that California no longer followed the old
common-law rule that privity of contract must exist in order for negligent
performance of a contractual duty to give rise to liability for damage to an
intangible economic interest. Rather, declared the court, the various
factors must be balanced, including the extent to which the transaction
was intended to affect the plaintiff, the foreseeability of harm to the
contractor, the degree of certainty that the contractor suffered injury, the
closeness of the connection between the architect’s conduct and the
contractor’s injury, the moral blame attached to such conduct, and the
policy of preventing future harm. It was stated that the position and
authority of a supervising architect are such that he ought to labor under
a duty to the contractor to supervise the project with due care, since
altogether too much control over the contractor necessarily rests in the
architect. The court stated that the power of an architect to stop the work
is alone tantamount to a power of economic life or death over the
contractor, and it is only just that such authority carry commensurate
legal responsibility.
b. Vonasek v. Hirsch & Stevens, Inc., 1974, Wisconsin: A building
under construction collapsed. The general contractor sued the architect
for the cost of repairing the building, claiming that the collapse was due
to the architect's defective plans which specified the use of horizontal
rather than diagonal joists. The court threw out the contractor’s lawsuit
and sided with the architect. The court rejected the contention that the
failure to use diagonal supports constituted negligence. The contractor
had relied upon an administrative rule requiring such joists in certain
cases, but the court pointed out that said rule was expressly made
inapplicable to steel joists as long as the ones in question. Moreover,
held the court, the architect did not breach a duty of reasonable care in
designing the building with horizontal joists, since the evidence
established that if correct erection procedures were followed, horizontal
supports were as safe as diagonals. The court further stated that the
architect had no duty to warn of possible construction hazards, in the
light of the widespread knowledge in the industry of the special
precautions to be taken when building with horizontal supports. Finally,
the court acknowledged that the weight of the expert testimony supported
a finding that the contractor's own construction procedures caused the
collapse.
3. Arizona Case: Donnelly Const. Co. v. Oberg/Hunt/Gilleland, 1984
a. Parties:
• Oberg/Hunt/Gilleland was an architectural firm that was retained by
Coconino County to perform architectural services for improvements to
the Page School complex.
• Donnelly Construction Company was a general contractor that
relied on the plans, specifications, and information contained in the site
plan to prepare its bid on the improvements.
b. Factual Background: Coconino County solicited bids for
construction of the Page School project. Among the documents available
to the bidders was a site plan, including engineering site specifications,
prepared by O/H/G. The site improvements included the construction of
retaining walls and sidewalks, grading and filling, and the installation of a
sprinkler system. Donnelly's bid was accepted and a contract with the
county board of supervisors was entered. Upon beginning work, Donnelly
found the plans and specifications prepared by O/H/G to be in
substantial error. The errors resulted in increased costs of construction
to Donnelly.
c. Issues: After substantially completing the work, Donnelly sued
O/H/G for its increased costs. Donnelly asserted three claims against
O/H/G: negligence, negligent misrepresentation, and breach of the
implied warranty that O/H/G's plans and specifications were accurate.
O/H/G filed a motion to dismiss the lawsuit, claiming that (a) because all
of O/H/G's actions were quasi-judicial in nature, the architectural firm
deserved immunity and (b) because there was no contractual privity
between Donnelly and O/H/G, Donnelly could not sue O/H/G.
d. Governing Law:
• An architect who is empowered to resolve disputes between an
owner and a contractor acts, in resolving such disputes, in a quasi-
judicial capacity and that, to allay the architect's fears of being mulcted in
damages, he or she has immunity against actions arising from
performance of those duties.
• There is no requirement of privity of contract to maintain an action
in tort. Rather, an action in negligence may be maintained upon the
plaintiff's showing that the defendant owed a duty to him, that the duty
was breached, and that the breach proximately caused an injury which
resulted in actual damages. Duty and liability are only imposed where
both the plaintiff and the risk are foreseeable to a reasonable person.
• Design professionals have a duty to use ordinary skill, care, and
diligence in rendering their professional services. When they are called
upon to provide plans and specifications for a particular job, they must
use their skill and care to provide plans and specifications which are
sufficient and adequate. This duty extends to those with whom the design
professional is in privity, and to those with whom he or she |
