Florida Courts Consider Control, Not Contractual Privity, for Negligence Claims Against Design Professionals

Construction and Procurement Law News, Q4 2018

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Though many states require a contractor to hold a contract directly with a design professional to pursue a claim against a designer for design omissions or defects, a recent case confirms that, in Florida, contractual privity (the legal term for a direct contractual relationship) is not required to recover purely economic damages. In Suffolk Construction Co., Inc. v. Rodriguez and Quiroga Architects Chartered, the Museum of Science, Inc. (“Museum”) contracted with Suffolk Construction Co., Inc. (“Suffolk”) to construct a science museum in Miami. Two years into the project, Museum terminated Suffolk’s right to proceed under the contract for convenience and entered into a direct contract with Suffolk’s subcontractor, Baker Concrete Construction, Inc. (“Baker”). Suffolk and Baker then brought claims of negligence in a federal trial court in Florida against the project’s executive architect and design architect, as well as the structural engineer and engineering firm that performed the design and engineering of the mechanical, electrical, and plumbing systems, alleging that their design documents were flawed and caused Suffolk and Baker to experience increased costs and delays.

To prove a claim of negligence, a plaintiff must show that (1) a defendant owed him a legal duty to protect him from unreasonable risk, (2) the defendant breached that duty, (3) the defendant’s breach caused his injuries, and (4) damages. The defendants in this case moved to dismiss the claims against them on the grounds that they did not owe Suffolk or Baker a legal duty because they had no contract with either contractor and no supervisory role or control over either contractor. The court, applying Florida law, rejected this argument, concluding that the defendants owed Suffolk and Baker a duty because they were in “the foreseeable zone of risk” of the defendants’ actions. Specifically, the court stated that an “architect[’s] or engineer’s knowledge that a third party will use its designs, plans or reports” constitutes sufficient control over that third party contractor for a duty to arise. The court also ruled that Suffolk and Baker had adequately alleged actual supervisory roles for the designers. Whether control exists must be determined on a case-by-case basis, but generally, in the absence of contractual privity, control can be established by showing either (1) the architect or engineer had a supervisory role or (2) the architect or engineer knew the contractor would rely on its designs or plans.

The defendants next argued that they did not owe a duty to Baker because Baker was only a subcontractor on the project. The court acknowledged that the design professionals’ duty does not extend to subcontractors, but noted that Baker alleged it acted as general contractor at various points of the project after Museum terminated Suffolk’s right to proceed. Thus, so long as Baker relied on the defendants’ designs or plans during the time it acted as general contractor, the defendants owed Baker a duty of care.

The main takeaway here is for design professionals: because (in the vast majority of construction projects) the contractor necessarily relies on designs or plans provided by an architect or engineer, design professionals practicing in Florida (and in most other states) can’t depend on the lack of contractual privity to shield themselves from liability to contractors for errors or omissions in their design documents. This “rule” varies from state to state, so design professionals and contractors should research the rights and remedies available to them in each state where they take on work.