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A general contractor sued a project architect, alleging that the architect prepared erroneous design documents knowing that the project owner would supply them to the successful bidder who would be injured if they were inadequate. An appellate court held the allegations were sufficient to establish a special relationship between the parties, thus permitting the suit to go forward despite the lack of a direct contract between the design professional and the contractor.

The trial court had dismissed the contractor’s complaint, and concluded that the architect did not owe a duty to prevent economic injury to the contractor since there was no contract directly between the parties. The complaint alleged that the contractor suffered economic losses from defects, omissions, and lack of specificity in the design documents. It also alleged that the architect knew the project owner (School District of Palm Beach) would supply the design documents to the successful bidder who would be injured if they were inadequate.

In dismissing the complaint, the trial court did two things that the appellate court found to be reversible error. First, the trial court found that the contracts that each entity had with the school district did not create privity of contract or any special relationship between the contractor and architect. Second, it found that based on the contract between the architect and the school district, the architect was not a supervisory architect on the project, and consequently owed no duty to prevent purely economic injury to the contractor.

Florida recognizes a common law cause of action against professionals based on their acts of negligence despite the lack of a direct contract. The court states that the economic loss rule does not bar actions for purely economic losses where a special relationship exists between the professional and the third party who is affected by the professional’s negligent acts. For these reasons, the court reversed the trial court’s decision. The contractor will be able to pursue its claim in a trail court. Hewett-Kier Construction, Inc. v. Lemuel Ramos and Associates, Inc. 775 So.2d 373 (Fla. App. 2000).

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 3, No. 6 (Sep 2001).