This was a negligence cause of action in which the contractor argued that the designer breached duties owed to the contractor by providing deficient plans to the project owner upon which the contractor relied. The designers moved to dismiss, arguing they had no supervisory role or control over the contractor and therefore owed no duty to the contractor. The court denied the motion because it determined that under Florida law a duty could arise where a “foreseeable zone of risk arises from the acts of the defendant.” The court cited precedent decisions in Florida that hold an architect’s level of control over a contractor and the foreseeability of injury determine whether the architect owes a professional duty to the contractor.
In the absence of privity of contract between the contractor and designer the court states that the designer must have some control over a contractor or a project for a duty to be imposed. “Control may be established … where the architect or engineer acts with knowledge that the plaintiff will rely on its designs or plans.” The court permitted the case to proceed to trial for a jury to determine whether the facts show that the designers had such control over the process to make it foreseeable that the contractor would be injured by the designer’s reports, plans and designs. Suffolk Construction Co., Inc. v. Rodriquez Quiroga Architects, et al., 2018 WL 1335185 (FL 2018).
Museum of Science, Inc. contracted with Rodriquez and Quiroga (“R&Q”) Architects as Executive Architect and contracted with Grimshaw Architects as Design Architect — for designing a science museum in Miami, Florida. The Museum contracted with Suffolk Construction, Inc. for the construction. After the Museum terminated the Suffolk contract for convenience, Suffolk sued the design firms for economic losses.
Plaintiffs set forth claims for negligence against each of the Defendants, arguing that Defendants breached their duties to Plaintiffs by providing deficient architectural, design, or engineering plans for the Project. To state a claim for negligence under Florida law, a plaintiff must allege: (1) a legal duty requiring the defendant to protect others from unreasonable risks, (2) breach of that duty, (3) a causal connection between the defendant’s conduct and the injury, and (4) damages.
In Florida, legal duties typically arise from: “(1) legislative enactments or administrative regulations; (2) judicial interpretations of such enactments or regulations. The duty alleged in this action falls under the last category—one which “encompasses that class of cases in which the duty arises because of a forseeable zone of risk arising from the acts of the defendant.
The court weighed heavily the appellate court precedent in the decision of A.R Moyer, Inc. v. Graham, 285 So. 2d 39 (Fla 1973) and explained that in that case,
the Florida Supreme Court held that a supervising architect owed a duty to a general contractor despite a lack of privity between the architect and general contractor. In reaching this case-specific conclusion, the Court balanced various factors, including “the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” [citation omitted] .The Court determined that, as a matter of policy, supervising architects simply have too much control over a contractor not to owe the contractor a legal duty and, therefore, “a third party general contractor, who may foreseeably be injured or sustained an economic loss proximately caused by the negligent performance of a contractual duty of an architect, has a cause of action against the alleged negligent architect, notwithstanding absence of privity.” Accordingly, the Florida Supreme Court held that an architect’s level of control over a contractor and the foreseeability of injury determines whether the architect owes a professional duty to the contractor.
The court then explains that cases that follow Moyer continue to require in the absence of privity of contract that a professional architect or engineer have some level of control over a third-party contractor for a duty to arise. The court then concludes that unless a designer exercises some control over a contractor or project, no duty will be imposed. But knowledge that the contractor will rely on its designs or plans may be sufficient to demonstrate “control” and therefore subject the designer to a duty owed to the contractor.
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. 20, No. 7 (Aug 2018).
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