An architect as a member of a learned and skilled profession is under a duty to exercise the ordinary, reasonable technical skill, ability and competence that is required of an architect in a similar situation; and if by reason of a failure to use due care under the circumstances, a foreseeable injury results, liability accrues.[i]

Architects are liable to third parties with whom they are not in privity of contract.[ii] In A. E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479 (Wis. 1974), the court held that the lack of privity does not constitute a reason for not imposing liability where negligence is shown to be a substantial factor in occasioning the harm.

In Auto-Owners Ins. Co. v. Mid-America Piping, Inc., 2007 U.S. Dist. LEXIS 72177, 8-9 (E.D. Mo. Sept. 27, 2007), the court observed two underlying policy reasons not to impose liability on architects not in privity with third parties:

• avoidance of unlimited liability to an unlimited number of persons, and
• avoidance of burdening those who contract with obligations they would not voluntarily assume.

Nevertheless, if neither of these policy concerns is present, the court may make an exception to the rule of lack of privity precluding negligence liability to a third party.  The liability of a contractual party to those not in privity is determined on a case-by-case basis. [iii]

The determination whether in a specific case the architect is held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are:[iv]

• 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 defendant’s conduct; and
• the policy of preventing future harm.

Each and every factor should not be proven in order to maintain a third-party action for negligence despite lack of privity.

Further, the requirement of privity is not applicable to actions sounding in tort and the majority of jurisdictions have held that the absence of privity is no bar to recovery of economic losses by construction professionals against one another, when reliance by the plaintiff is reasonably foreseeable.[v]

Liability for the negligent performance of supervisory duties is separate and distinct from any liability for negligently performing the actual building or design.  In the absence of the contractual right or responsibility to supervise and control the construction work including site safety, the architect should incur no liability for injuries to workmen proximately caused by ordinary negligence at the site.[vi] The logic behind such a rule is that one should not be held responsible for that over which one does not exercise any control.

However, in Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 308 Md. 18 (Md. 1986), the court held that liability applies not only to architects doing original work, but also to those who make repairs, or install parts, as well as supervising architects and engineers.  There may be liability for negligent design, as well as for negligent construction.

Architects owe a duty to exercise the care required of their professions to persons with whom they are not in privity when the injury to those third parties is foreseeable.[vii] In Samuelson v. Lord, Aeck & Sergeant, 205 Ga. App. 568 (Ga. Ct. App. 1992), the court held that one cannot be held liable for professional negligence to a party not in privity with the professional.  However in malpractice actions, professionals owe a duty of reasonable care to parties who are not their clients.

An architect is not liable for mere errors of judgment.[viii] The liability of an architect attaches only when his conduct falls below the standard of skill and care exercised by others engaged in the same profession in the same locality.

Thus, an architect is liable to all those who may foreseeably be injured by the structure, not only when s/he fails to disclose dangerous conditions known to him/her, but also when the work is negligently done.[ix]

[i] Chubb Group of Ins. Cos. v. C.F. Murphy & Associates, Inc., 656 S.W.2d 766 (Mo. Ct. App. 1983)

[ii] In re Designed Ventures, 132 B.R. 677 (Bankr. D.R.I. 1991)

[iii] Auto-Owners Ins. Co. v. Mid-America Piping, Inc., 2007 U.S. Dist. LEXIS 72177, 8-9 (E.D. Mo. Sept. 27, 2007)

[iv] Colbert v. B.F. Carvin Constr. Co., 600 So. 2d 719 (La.App. 5 Cir. 1992)

[v] Insurance Co. of N. Am. v. Town of Manchester, 17 F. Supp. 2d 81 (D. Conn. 1998)

[vi] Yow v. Hussey, 201 Ga. App. 857 (Ga. Ct. App. 1991)

[vii] Chubb Group of Ins. Cos. v. C.F. Murphy & Associates, Inc., 656 S.W.2d 766 (Mo. Ct. App. 1983)

[viii] Colbert v. B.F. Carvin Constr. Co., 600 So. 2d 719 (La.App. 5 Cir. 1992)

[ix] Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 308 Md. 18 (Md. 1986)