Sharing Fault: Architects and Contractors on the Line

by | May 4, 2021 | Contracts

In a number of jurisdictions, it has been the case that an architect can be held liable to a contractor if that contractor is damaged by the architect’s negligence. This is true even if the contractor and architect have no contractual relationship. In many instances, these decisions revolve around the degree of supervision or control the architect may have had over the contractor.

A recent case further illustrated the applicability of this principle. As is true of most projects, this one started off well, full of excitement, great expectations and the hope of profit. The owner hired a well-known architect to design the commercial building as well as an experienced contractor to build it. Things went well, for a while, but after several months it was becoming clear this job was falling behind schedule and was significantly over budget. So the owner fired the contractor. But rather than simply take his licks alone, the contractor fought back. The contractor brought in the architect, suing him for professional negligence. And the lawsuit stuck.

The contractor showed that the architect had agreed with the owner to visit the project site, attend construction meetings, make recommendations, review disputes between the contractor and owner, accept or reject contractor’s work, assist in approving payment applications, and manage the punch list process. The architect became the owner’s “eyes and ears” on the job. What the architect did not have was any ability to terminate the contractor. And as such, the architect did not seem to have the sort of authority that might raise its involvement to the requisite level of control to hold the it liable. Or so you might think. But the court found the architect’s involvement was extensive enough. He owed a duty of care to the contractor and couldn’t escape potential liability because it had no contractual relationship with the contractor.

Contractors facing any sort of liability on a project would now do well to review the extent of the architect’s involvement on the job. Design professionals that participate in project administration can be on the hook not just to the owner and those with which they contract, but also to the contractors on the job.

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