The most common theories of liability asserted against architects have included substantive and procedural developments affecting claims against architects and engineers, including theories which have enabled claimants to circumvent traditional privity of contract requirements.
Virtually all theories of liability between members of the construction team can be traced back to, or are limited by, the basic contract documents which govern the construction of virtually any project. These are the contract between the owner and architect (and, in turn, between the architect and his consulting engineers) and the contract between the owner and the contractor. For purposes of liability, the most significant aspect of this contract are the plans and specifications, and more particularly the general conditions of the contract for construction, which usually are a part of the specifications.
Architects do not impliedly warrant or guarantee a perfect plan or satisfactory result. When they bind themselves by contract to do a work or to perform a service, however, they agree by implication to use reasonable care and skill in doing it. Thus, breach by architects of the implied warranty or duty to use reasonable or customary care in the provision of professional services gives rise to an action under contract for negligent services[i].
Since an architect or engineer’s duty depends upon the particular agreement entered into with his employer, it would appear on its face that the architects’ duty was discharged by either producing the drawings and specifications or by observing the construction, whether or not the plans were suitable or the observance of construction was competently performed.
In I. O. I. Sys. v. Cleveland, 615 S.W.2d 786, 790 (Tex. Civ. App. Houston 1st Dist. 1980), the court held that “ In contracting for personal services, an architect’s or engineer’s duty depends on the particular agreement entered into with his employer. An engineer or an architect must use the skill and care in the performance of his duties commensurate with the requirements of his profession, and is only liable for a failure to exercise reasonable care and skill commensurate with those requirements.”
In Coulson v. Lake L.B.J. Municipal Utility Dist., 734 S.W.2d 649 (Tex. 1987)on remand to
771 S.W.2d 145 (Tex. App.—Austin 1988), rev’d, 781 S.W.2d 594 (Tex. 1989), the Supreme Court addressed, albeit obliquely, the question of whether an Architect/Engineer contract to provide design service simplicitly contained an undertaking that the services would be provided in a competent manner.
There, in a case involving an engineer’s fee, the court noted that although the engineer complied with the express requirements of the contract, and was therefore entitled to a presumption that the work he performed was “good and workmanlike,” the presumption could be rebutted by proof that the work did not meet the standards of “reasonable engineering practice.” This essentially is the negligence standard of care articulated in Ryan v. Morgan Spear Assocs., Inc., 546 S.W.2d 678, 681 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.), and means that the architect not only is required to do the work, but also to do it competently, and that his failure to do so constitutes a breach of contract, as well as negligence.
For instance, Pursuant to code of California, Cal Bus & Prof Code § 5536.25, liability of architect signing plans or other documents shall be the following:
(a) A licensed architect who signs and stamps plans, specifications, reports, or documents shall not be responsible for damage caused by subsequent changes to or uses of those plans, specifications, reports, or documents, where the subsequent changes or uses, including changes or uses made by state or local governmental agencies, are not authorized or approved in writing by the licensed architect who originally signed the plans, specifications, reports, or documents, provided that the written authorization or approval was not unreasonably withheld by the architect and the architectural service rendered by the architect who signed and stamped the plans, specifications, reports, or documents was not also a proximate cause of the damage.
(b) The signing and stamping of plans, specifications, reports, or documents which relate to the design of fixed works shall not impose a legal duty or responsibility upon the person signing the plans, specifications, reports, or documents to observe the construction of the fixed works which are the subject of the plans, specifications, reports, or documents. However, this section shall not preclude an architect and a client from entering into a contractual agreement which includes a mutually acceptable arrangement for the provision of construction observation services. This subdivision shall not modify the liability of an architect who undertakes, contractually or otherwise, the provision of construction observation services for rendering those services.
(c) “Construction observation services” means periodic observation of completed work to determine general compliance with the plans, specifications, reports, or other contract documents. However, “construction observation services” does not mean the superintendence of construction processes, site conditions, operations, equipment, or personnel, or the maintenance of a safe place to work or any safety in, on, or about the site. For purposes of this subdivision, “periodic observation” means visits by an architect, or his or her agent, to the site of a work of improvement.
[i] Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65 (Utah 2009)
