Risk to the project architect/engineer (A/E) can be caused when its client (the project owner) provides it insufficient, incomplete, or inaccurate information upon which it relies. Agreements between the A/E and its client should identify data and information to be provided to the A/E by the owner and it should permit the A/E to rely upon that data. There are a number of reported cases where the A/E has performed planning and design in reliance upon owner data such as site data or geotechnical engineering reports that turned out to be erroneous. When that happens, the project may not be able to be constructed as planned or the facility may not perform as expected. In the absence of a clear contract as to who has responsibility for that information and what reliance the A/E may place upon it, the matter is apt to end up in court if things go terribly wrong on the project.
In Venecia Gilliam v. Meridith Corporation, 744 So. 2d 1249 (24 Fla. Law W.D. 2605), the City of Minneola, Florida retained an A/E to design a booster station to solve a water pressure problem in the city water system. The A/E drafted specifications for construction bids, calling for a new 5,000 gallon water storage tank. Minneola asked the A/E to prepare an alternate specification using a 3,500 gallon tank the city had previously used in the system. In complying with the request to prepare an alternate specification, the A/E recommended to the city that the old tank be professionally inspected and tested before deciding whether to use it.
The city opted to use the 3,500 gallon tank and asked the A/E to obtain a proposal for the inspection. As requested, the A/E obtained a proposal for testing from a testing firm and forwarded the proposal to the city. Apparently, nothing was done with the testing proposal by the city to either accept it or reject it. The tank was never inspected. The A/E asserts that he inquired about the proposed inspection and was led to believe that it had been done. The fact that the city sandblasted and painted the tank so it appeared to have been refurbished reinforced the A/E’s belief that it had been inspected. A city employee, however, in testimony during a deposition, countered the A/E’s assertions.
Two years after the completion of construction on the booster station, the tank ruptured and a worker was killed. The tank ruptured because of defective welds that had been made 19 years earlier to patch a rectangular hole in the tank that ironically had been cut for the purpose of inspecting the tank back then. The court says that determining the cause of the rupture is complicated by the fact that after the pressure booster project was completed, the city installed a replacement pump that did not meet the A/E’s original specifications. The A/E had no part in the installation of the replacement pump. The trial court granted a motion for summary judgment in favor of the A/E. The appellate court reversed that decision, saying there were factual issues to be decided by a jury, as to the A/E’s role and responsibility during the initial installation of the booster station and in the inspection of the 3,500 gallon water tank.
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. 2, No. 3 (Mar 2000).
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