Suit by Condominium Owners Association (COA) against consulting firm that prepared a property condition assessment (PCA) was dismissed by court on summary judgment motion for failure to show that consultant owed a duty of care to the condominium owners who purchased their units from a firm for whom the consultant previously prepared a PCA. The primary argument of the condominium association was that the consultant was providing engineering and consulting services when it prepared the PCA, and pursuant to state statute requiring engineers “to safeguard life, health, and property and promote the general welfare,” it owed a duty of care to the condominium purchasers. The association also cited a state statute of care for architects that states, “when practicing architecture, you must act with reasonable care and competence, and must apply the technical knowledge and skill which is ordinarily applied by architects of good standing, practicing in the same locality.”
Quoting from previous case precedent the court stated, “The broad pronouncements that engineers owe a general duty to the public welfare alone do not establish that engineers owe a duty to any identifiable group or individual.” And the court concluded, “The COA has not met its burden in articulating how the broad pronouncements in [the statute], which relates to engineers, impose a duty that [consultant] owed to the unit owners.” The court went on to explain that when the consultant entered into its contract with its client to do the property condition assessment, the condominium association was not its client or employer – and the purchase of the apartments and their conversion to condominiums had not yet even occurred. “Under these circumstances, there is simply no showing of any duty owed under the statutory or regulatory provisions on which the COA relies.” Madera West Condominium Association v. Mark/Okubo, 175 Wash. App. 1032 (Wash. 2013).
Comment: The condominium here asked the court to impose a duty of care in its favor by virtue of the quoted statute concerning a general duty of care owed to the public. But to prevail, the association was required to demonstrate that the condominium owners were within the class of persons the statue was enacted to protect. Just the fact that the consultant owed a general duty to the public does not, standing alone, establish a duty of care to an identifiable individual such as a condominium unit owner in this case.
It is because of cases like this one where condominium owner associations and unit owners seem to have a greater propensity to sue consulting firms that provided services for an original apartment house owner, that consultants may be concerned about the prospect that their client might convert a building into a condominium. Some consultants have sought assurance that their client does not intend to convert to condominiums, or if there is a chance of that happening, may require special limitations of liability and indemnification in the event such a conversion occurs.
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. 15, No. 10 (Oct 2013).
Copyright 2013, ConstructionRisk, LLC