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A man who fell from a retaining wall at a streetscape project being built for a city filed suit against the city as well as the architect (BL Companies, Inc.) for the project. The legal theory against the architect was that he had created a public nuisance by failing to provide protective fencing for the wall. The architect filed a motion for summary judgment asserting that it had no supervisory authority over the construction, no site safety responsibility and no control over the retaining wall – all of which were assigned to the construction contractor pursuant to contract between the city and the contractor.

The plaintiff argued in opposition to that motion, that each defendant, including the architect, had control over the project until it was completed, and that the designers can be liable in public nuisance for defective or dangerous construction that they create by their design. No professional negligence claim was made against the architect. The trial court granted summary judgment for the architect and this was sustained on appeal, with the appellate court holding that there was no basis to find a public nuisance since there was no evidence that the architect had actual control over the physical property. It rejected the plaintiff’s contention that the architect had control over the property because it had significant input into the design and construction of the project and failed to include a fence in its design.

The court found that neither the town nor the construction contractor included any input the architect had into the design of the wall. It is also found that any inspection duties the architect may have had did not create “control over the property.” No evidence was found of delegation to the architect of authority over the wall. Consequently the architect could not be deemed a “user of the property” which would have to be demonstrated in order to find public nuisance. Gregg Fisk v. Town of Redding, et. al., 138 A. 3d 410 (Conn.2016).

 

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. 18, No. 7 (December 2016).

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