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CLAIMS AGAINST AN ARCHITECT

CLAIMS AGAINST AN ARCHITECT

WHEN THEY INVOLVE A BUILDING CODE VIOLATION AND OTHER CONTRACT MATTERS

One contentious area of Arizona law is what duty, if any, an architect or engineer has once a code violation occurs.  Claims against architects are generally based on negligence or negligent misrepresentation.  Although architects and engineers have contracts with their clients (either an owner or a general contractor) the performance of the architect or engineer is generally measured by whether or not the architect or engineer performed his or her services consistent with the ordinary skill and prudence of a licensed engineer or architect practicing in Arizona.[1]  Under this standard, the creation of plans and specifications that do not comply with applicable building codes is not in and of itself enough to impose liability on an architect or engineer.  In other words, failure to comply with the building code is not always considered a failure to meet the required standard of care.[2]  Since an architect merely warrants that plans are adequate and not perfect, it will always be necessary to obtain an expert opinion that an architect’s violation of the building code was a violation of the standard of care.[3]

However, the fact that a design professional met all applicable building codes is not in and of itself sufficient to establish he/she met the standard of care.  As such, an architect who established that he had met all applicable codes and standards may still be subject to a claim for negligence.  In addition, it is not a defense to a claim for negligence that a building inspector has approved a design. 

Contractors who are damaged by reliance on plans and specifications that violate building codes may, however, have claims against architects and engineers even if the contractor does not have a contract with the architect or engineer.  In Donnelly Const. Co. v. Oberg/Hunt/Gilleland, the Arizona Supreme Court held that a contractor who suffers foreseeable injury as a result of an architect’s failure to meet the appropriate standard of care in drafting plans has a claim against the architect even though the contractor does not have a contract with the architect.[4] 

In Donnelly, a general contractor relied on plans and specifications prepared by the owner’s architect while preparing a bid on a project.  After successfully winning the bid and beginning construction, the general contractor discovered significant errors in the project plans and specifications that made construction substantially more expensive than anticipated in the bid.  After completing the project, the general contractor brought a claim against the architect for the extra costs incurred.  In permitting the general contractor to proceed with its lawsuit, the Arizona Supreme Court stated:

Design professionals have a duty to use ordinary skill, care, and diligence in rendering their professional services.  When they are called upon to provide plans and specifications for a particular job, they must use their skill and care to provide plans and specifications which are sufficient and adequate.  This duty extends to those with whom the design professional is in privity and to those with whom he or she is not.[5] 

Finding that it was foreseeable to the architect that a general contractor would rely on its plans while bidding and could be injured if the plans were defective, the Arizona Supreme Court permitted the general contractor’s suit to move forward.[6]

Although there may be an avenue for recovery, design professionals do have options to limit their potential liability.  In Arizona, the Supreme Court has held that an architect or other design professional may properly limit its liability through contract.[7]  In 1800 Ocotillo, L.L.C. v. WLB Group Inc., the Supreme Court held that a clause in an architect-owner contract limiting damages to the amount of fees paid to the architect did not violate public policy and was enforceable.[8]  Often times, contracts entered into between an architect and an owner-developer limit their liability to a certain amount.[9]  These caps in potential liability have been upheld in Arizona.

Negligence Actions

Contractors, architects and even building inspectors may be sued in tort when a negligent action of the contractor leads to personal injury or property damage.[10]   “Negligent conduct is doing something that a reasonable person should realize involves an unreasonable risk of causing an invasion of an interest of another.”[11]  To establish a claim for negligence, a plaintiff is required to show the existence of a duty, violation of the duty, and foreseeable damages caused as a result of the violation.[12] 

Construction that violates building codes can give rise to negligence claims against contractors if the violation leads to a personal injury or damage to property other than the building itself.[13]  As discussed above, violation of a building code may be sufficient to establish the contractor’s duty of care and violation of that duty.[14]  This is referred to as negligence per se, and the doctrine applies when a person or entity violates a safety statute intended for the protection of third parties.[15]  Violation of a building code provision may be negligence per se.[16]  However, violation of the building code does not definitively establish that negligence per se occurred.  This finding depends on several factors with results determined on a case by case basis. 

This principle is described in the Ohio Court of Appeals case Moore v. McCarty’s Heritage, Inc.[17]   In Moore, the court examined the interplay between code violations and negligence when it opined:

A building code provision which prescribes a standard or obligation for a builder to follow in abstract or general terms, permitting alternative choices and use of discretion and setting no fixed and absolute standards of duty, cannot form a basis for a determination that a violation thereof by a builder is negligence per se. . .

[w]here a building code imposes upon a builder a specific duty for the protection or benefit of others and he neglects to perform that duty, he is liable to those for whose protection or benefit it was imposed for any damages which were proximately produced by such neglect.[18]

Therefore, if the code provides requirements and restrictions in abstract and general terms with no fixed duties outlined, the ability for a determination of negligence per se is minimized.   However, if the building code provides definitive and established requirements and a distinct and articulated duty is shown, the ability for negligence per se to be found increases significantly.  This process will involve a fact-intensive and case-by-case analysis of both the code and also the actions in question.

Even if a violation of a building code is held to be negligence per se, the violation leads to liability only if damages occurred and there is causation between the negligence and the damaged caused.  This principal is examined in the New York case Beecher v. Northern Men’s Sauna.[19]   In Beecher, a patron died from smoke inhalation during a fire at the business.  It was argued by plaintiff’s counsel that the architect was negligent because the design of certain exit doors at the building had violated code.  The court rejected plaintiff’s argument and held that even if the architect did violate the building code, there was no evidence provided by the plaintiff that the location and design of the exit doors contributed to the death of the patron.  Since there was no causation between the potential negligent door design in violation of the building code and the smoke inhalation of the patron, the architect could not be held liable for damages.[20]

[1] National Housing Industries, Inc. v. E. L. Jones Development Co., 118 Ariz. 374, 377, 576 P.2d 1374, 1377 (Ariz. App 1978).

[2] See, e.g., Garaman, Inc. v. Williams, AIA, 912 P.2d 1121, 1124 (Wyo. 1996) (architect’s failure to comply with code requirement does not in and of itself establish negligence).

[3] Id.

[4] 139 Ariz. 184, 677 P.2d 1092 (1984).  It should be noted that subsequent case law has limited portions of this opinion for other issues.  See i.e, Flagstaff Affordable Housing Ltd. v. Design Alliance, Inc., 221 Ariz. 433, 212 P.3d 125 (Ct. App. 2009).  However, the basic premise concerning potential lability of architect remains intact.

[5] Id. at 187, 677 P.2d at 1265 (citations omitted).

[6] Id. at 187-88, 677 P.2d at 1295-96.

[7] 1800 Ocotillo, L.L.C. v. WLB Group, Inc., 219 Ariz. 200, 196 P.3d 222 (2008).

[8] Id. at 204, 196 P.3d at 226 ¶¶ 17-21.

[9] It is prevalent that a contract will contain a limitation of any damages to the amount paid to the design professional, which can be substantially less than the actual damaged caused by the defective and negligent design of a project.

[10] Chirco v. Woodward Const. Co., 141 Ariz. 514, 516, 687 P.2d 1269, 1271 (1984).

[11] Wilson v. City of Tucson, 8 Ariz. App. 398, 402, 446 P.2d 504, 508 (1968).

[12] Id.

[13] Chirco, 141 Ariz. at 516, 687 P.2d at 1271.

[14] J.H. Welch & Son Contracting Co. v. Gardner, 96 Ariz. 95, 99, 392 P.2d 567, 570 (1964).

[15] Id.

[16] See, e.g., Pierce v. ALSC Architects, P.S., 890 P.2d 1254 (Mont. 1995) (holding that an architect violated the uniform building code when a door was left in a remodeled building which permitted an employee to gain access to a storage room and fall through a drop ceiling).

[17] 404 N.E.2d 167 (Ohio App. 1978).

[18] Id.at 172.

[19]707 N.Y.S.2d 465 (App. Div. 2000).

[20] Id. at 456-66.

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