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Where an architect designed a house and observed its construction during the construction phase, it had a duty to identify significant deviations from its plans and specifications that impacted the structural integrity of a balcony – causing it to collapse and seriously injure house guests.  The duty extended not only to the client but also the house guests whose injuries were foreseeable.  In the case of Black + Vernooy Architects, 2010 WL 5019659 (Tex., Dec 2010), the architect’s contract included both design and “construction administration services.”  Within just seconds of walking onto the balcony of the new home, the balcony separated from the exterior wall of the house and collapsed, causing the two guests to fall almost 20 feet, rendering one of them a paraplegic.   There were numerous construction defects where the contractor failed to comply with the specifications including nailing the rim joist or ledger board to the house instead of bolting it; nailing the joists to the ledger board instead of using joist hangers; use light-weight bearing support clips incorrectly used; and not bolting handrail to the house.  During site visits the Architect photographed the progress of construction, including numerous photographs clearly showing the defects in the construction of the balcony, but the Architect failed to report the defects to the Owner.   Expert witnesses testified that a reasonable and prudent architect would have identified the balcony defects when the photographs were taken and brought them to the attention of the contactor and required that they be corrected.  The expert testified that the “defects should have been observed” by the architect because the required design elements were clearly missing.  The expert witness of the defendant also agreed that the lack of the bolted rim joist was obvious in the photographs.   The court found that under the applicable AIA B151-1997 contract, the architect had a duty to its client to “endeavor to guard” against such defects and the court held that the duty extended to those persons foreseeably subjected to the risk of personal injury.

In its appeal from the trial court decision, the architect argued that there was legally insufficient evidence to support the jury’s finding that it was negligent because it didn’t have a duty to the house guests to identify the balcony defects and bring them to their attention.  It argued that any duty that it had was to its client only and not to anyone else such as foreseeable visitors to the house.    The expert witness for the architect testified that regardless of how open, obvious, dangerous, or observable a defect is, an architect providing contract administration services who does not actually observe the defect has no duty to bring it to the owner’s attention.  Rejecting that position, the appellate court concluded that although it agrees that the architect is not a guarantor or insurer of the general contractor’s work, it has a duty to “endeavor to guard” its client form defects and deficiencies in the work and may be held liable for a breach of its duty as a provider of information.

The court was careful in its analysis to explain that it was not imposing a duty on architects to identify every possible contractor deviation form the specifications, but that those which are obvious and should have been known to the architect, must be acted on.  The court explained as follows:

“While an architect providing contract administration services does not have a duty to identify every possible deviation from the design drawings, we conclude that the architect does have a duty to identify observable, open, and obvious deviations that implicate safety and structural integrity and that were clearly presented to the architect. The evidence in this case is particularly unique in that the defects can be identified on photographs actually taken by the architects in the course of providing contract administration services. In contrast, in a situation where a defect is created and then immediately obscured by walls or ceilings so that it is never observable to the architect during a site visit, no duty to identify the defect would arise. Similarly, it is possible that no duty would arise if a defect is only visible from a certain vantage point and there is no evidence that the architect ever viewed the defect from that particular vantage point. In this case, however, Schmeil himself took photographs depicting the defects and deviations from the design drawings. There is no question that the defects were not only observable to Schmeil during his site visit, but also observable to both Schmeil and Black during their subsequent review of the photographs.”

In deciding whether the duty to the client extended to the third party guests of the client, the court said balancing factors such as the risk and foreseeability of injury and the consequences of imposing the burden on the architect must be considered.    Here the court said that the factors weighed in favor of finding the architect had a duty to the third parties because:

“When an architect agrees to provide contract administration services, that architect’s failure to notify the owner of observable and dangerous deviations from the architect’s own design drawings, particularly in connection with an element like a balcony where construction in accordance with the design drawings is a critical safety issue, creates a foreseeable risk of injury for visitors lawfully on the premises.”

The court further explained its conclusions regarding the foreseeability factor as follows:

“The foreseeability factor in this case is based, in part, on the public’s reliance on design professionals to properly perform their contractual obligations as a matter of public safety. When a visitor to a residence, lawfully on the premises, walks out onto a balcony, the personal safety of that visitor depends on certain professionals having non-negligently performed their contractual duties with respect to the balcony. In a case where an architect was hired to perform contract administration and to “endeavor to guard” the owner against defects and deficiencies in the work, the visitor’s safety depends on the architect having fulfilled this duty using the level of care, skill, and diligence that would be exercised by a reasonably prudent architect under similar circumstances.”

Several times the court seemed to go to great pains in this decision to explain that it did not intend to make design professionals into building inspectors or guarantors that construction was done perfectly.  For example, the court said:

“To be clear, BVA did not have a duty to ensure that the construction site was a safe place to work, verify that Nash was following federal safety regulations, or fulfill any other obligation dependent on the right to control the means or methods of construction….  BVA’s liability in this case is not based on any duty that would require control of the means or methods of construction, but on BVA’s “nonconstruction responsibility” to “visit, to familiarize, to determine, to inform[,] and to endeavor to guard” against defects and deficiencies in the work.    …   We also reiterate that an architect providing contract administration services does not act as a guarantor or insurer of the work of the general contractor. Our holding today is limited to the facts of this case, in which the architects agreed to provide contract administration services, took and reviewed photographs of multiple open and obvious defects that negatively affected the structural integrity of a balcony that they designed, the safety of which was critical, and failed to observe those defects. Under the circumstances presented here, the jury was entitled to determine whether BVA was negligent. The potential for negligence was based on the BVA’s duty as a provider of information, rather than as a guarantor of the contractor’s performance.”

For these reasons, the court affirmed the trial court judgment against the architect.

Comment: This is an example of the old adage that “Bad facts make bad law.”  The court in this case was so persuaded by the bad facts of this case, with photographs of obvious defects actually having been placed by the Architect on its own website to show off its work, that the court found that even if the Architect didn’t actually know about the defects, it should have known, and under its contract with its client it had a duty to “endeavor to guard” against such defects – and in this case the foreseeability of injury from such structural defects was so apparent, that the architect was properly subject to a jury verdict finding it liable.  AIA B101 – 2007 has removed the language “endeavor to guard”.  In light of this decision, this looks like a wise change in the contract form.  Under the bad facts of this case, it is doubtful that the deletion of those words from the architect’s contract would have made any difference in the court’s decision.

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. 13, No.5 (May 2011).

Copyright 2011, ConstructionRIsk.com, LLC