3.8.16 The ELR and Design Professionals: The Preeminence of Donnelly

• Jurisdiction: Arizona

With respect to design professionals, we await further guidance from the Supreme Court of Arizona which presently has Hughes under consideration. Pending the issuance of that ruling, we know from Flagstaff Affordable Housing that, for the purpose of the ELR, design defects will be treated no differently from construction defects. According to Flagstaff Affordable Housing, the ELR shall be applied categorically to design professionals, just as it is to contractors.

At present, we need look no further than Donnelly Construction Co. v. Oberg,^[53] for viable remedies against design professionals. In the aftermath of Flagstaff Affordable Housing and the maelstrom of recent Arizona appellate ELR decisions, Donnelly remains unscathed. There, a general contractor brought suit against the owner’s architect, complaining that the architect’s defective plans caused the general contractor to incur extra building costs. Finding that design professionals have a duty to use ordinary skill, care and diligence in rendering their professional services, an implied duty that transcends their contractual duties, the Supreme Court of Arizona ruled that the aggrieved contractor stated viable claims against the design professional, notwithstanding the absence of privity between plaintiff and defendant. Those claims included negligent misrepresentation, negligence, and breach of the common law, i.e., implied warranty that they exercise their skills with care and diligence and in a reasonable, non-negligent manner.^[54]

In so ruling, the court relied on L.H. Bell & Associates v. Granger,^[55] in which the Supreme...