Chapter 8 - § 8.2 • THEORIES OF LIABILITY

• Jurisdiction: Colorado

§ 8.2 • THEORIES OF LIABILITY

§ 8.2.1-Negligence

Negligence is defined generally as "[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation."² In Colorado, the elements of a negligence claim are: a duty owed by the defendant to the plaintiff, a breach of that duty, injury to the plaintiff, and a proximate cause relationship between the breach and the injury.³

According to BRW, Inc. v. Dufficy & Sons, Inc., the claims pursued by project owners, contractors, subcontractors, architects, and engineers against other members of the project team will often be limited by applicable contracts.⁴ Claims for personal injury, and not injury to property,⁵ are usually deemed "non-economic" claims and will continue to support a negligence cause of action. This rule does not alter the following discussion regarding the determination of negligent conduct or liability on the part of design professionals. This is because in most instances one will determine whether an architect or engineer breached a contract by determining whether the contract was performed in a non-negligent manner. See § 8.2.2. Further, as is discussed in detail in § 8.4.11, while a construction subcontractor may not be permitted to bring a direct negligence action against an architect for the increased cost of performance arising out of negligently prepared plans, claims brought within the limits of the project contracts will impose ultimate responsibility on the party or parties who - through negligent performance - breached their contract, thereby causing the loss. It should also be noted that the court's decision in Dufficy is limited to members of the project team and does not affect the ability of strangers to the project, such as patrons or adjoining property owners, to bring tort actions.

Foreseeable Plaintiffs

The A/E owes a duty of reasonable care to all persons who may foreseeably suffer damages as a result of the A/E's negligence.⁶ Those claimed to be included as reasonably foreseeable plaintiffs include:

• Initial Project Owner. Skylights designed by the project architect leaked;⁷
• Subsequent Owners. Condo owners who purchased from the original owner/developer sued the architect who designed the project;⁸
• Tenants and Their Guests. An apartment tenant's guest's child fell from balcony of a project designed by the architect;⁹
• Employee of Owner. A racetrack employee was injured when a heating duct designed by an A/E fell;¹⁰
• Adjoining Property Owners. An adjoining property was damaged during the excavation of a project designed by the A/E;¹¹ the engineer who designed a bridge over a river that subsequently flooded due to bridge design was liable to the adjoining landowner since increased likelihood of flooding was foreseeable;¹²
• Project Lender. An A/E's negligent inspection of construction induced improper loan payments to the developer;¹³
• Construction Workers. A construction worker fell through a hole in a roof of a project designed by the architect;¹⁴
• Contractor. A contractor claimed increased cost due to improper foundation design;¹⁵
• Subcontractors. The prime contractor went broke; rather than sue the bankrupt contractor, subcontractors alleged the A/E was responsible due to improper approval of pay requests;¹⁶
• Contractor's Surety. An electrical subcontractor's surety claimed A/E was negligent in failing to discover the subcontractor's defective work;¹⁷ and
• Material Supplier. A tile supplier sued the A/E when tile failed on the basis of negligent testing by the A/E.¹⁸

Thus, the practice and potential malpractice of the A/E may create a duty toward, and potential liability with respect to, virtually everyone who comes into contact with the project during construction or after completion. The following cases analyzed this issue.

Client

In Lyon v. Belosky Construction, Inc.,¹⁹ the owners contracted for a custom residence at a cost of $247,000. Extra services in the amount of $42,000 were added. After construction was completed, the owners found the house to be aesthetically displeasing in proportion and appearance. Correction was priced at $73,000. The contractor and engineer argued that the proposed damages constituted economic waste and that the proper measure of damages was the reduction in market value (presumably zero). The court noted that it was clear from the record that the aesthetic appearance of the home was of utmost importance to the plaintiffs, that they were entitled to the benefit of their bargain, and that requiring the defendants to remedy the problem was not economic waste. (No pictures of the house were available to allow an independent observer to determine the actual appearance.)

In Jaime Schapiro AIA & Associates Architects Planners v. Rubinson,²⁰ the architect stated that the probable cost of construction would be $5,020,025. Bids came in at over $7,000,000. The owner commenced construction and sued the architect claiming negligence and breach of contract. The court held that by proceeding with the work with full knowledge of the difference between the architect's estimate and the bid, the owner rendered moot any negligence by the architect. The court determined that any negligence on the architect's part could not have been the proximate cause of the homeowner's claimed damages.

Patrons

In Greenhouse v. C.F. Kenner Associates, Limited Partnership,²¹ a plaintiff involved in an automobile accident in a parking lot sued the designer. The court held that the architect was not liable despite the fact the lot could have been designed to be "safer." In Murphy v. Conner,²² a patron of a shopping mall sued the engineer as a result of injuries sustained in a fall on a floor alleged to be "too slippery." The court held that the expert's affidavit that the floor was "too slippery" was insufficient to raise a triable issue of fact. Foster v. Chung²³ presented a novel claim against engineers involved in highway design. Foster was killed in a highway accident after he hit a puddle of standing water on the highway and lost control of his car. According to the complaint, improper compaction of the subgrade base material led to settlement of the pavement, allowing water from the median irrigation system to pond on the road. On appeal, the court reversed summary judgment in favor of the engineers.

Subsequent Owners

The purchasers of an apartment complex sued the seller and architect. The architect had signed a letter stating, "to the best of his knowledge, the construction . . . was substantially completed in a first class, workmanlike manner and in accordance with the architectural plans and applicable laws." The court in Tahoe-Vinings v. Vinings Partners²⁴ held that the architect had no duty to purchasers who had not hired him and with whom he had no relationship.

In Krusi v. S.J. Amoroso Construction Co.,²⁵ the plaintiff was the fourth owner of the property. He sued the original architect and contractor alleging design and construction defects. The original owner had arbitrated with the architect over the same defects. The court held that an original owner may choose to transfer a cause of action to a subsequent purchaser, but the intent to do so must be clear. Once a claim accrued to the original owner, another cause of action on the same issues could not accrue to a subsequent owner.

In Piantidosi v. Dragone,²⁶ the MacGarveys hired Brooks Laboratories to evaluate the condition of an underground petroleum storage tank on their property. The MacGarveys later sold the property to the Dragones, who subsequently sold it to the plaintiffs. The plaintiffs sued Brooks for alleged negligence in determining the condition of the tank, which had leaked. Brooks filed a motion to strike on the basis that it had no legal duty to the plaintiffs because the testing was done exclusively for the MacGarveys and the plaintiffs failed to allege any statutory or contractual duty owed by Brooks. According to the court, privity was not required. The test for existence of a legal duty was (1) whether an ordinary person would anticipate harm of the general nature that occurred and (2) a public policy determination as to whether the defendant's responsibility should extend to this plaintiff under these facts. However, Brooks' motion was granted because the plaintiffs failed to establish how or why the laboratory should have anticipated that the plaintiffs would be harmed by its conduct.

Tenants

In Bruzga v. PMR Architects, P.C.,²⁷ the estate of a suicide victim who hanged himself from a fire sprinkler pipe while in a state prison sued the prison's architect. The court held that the suicide was an intentional, independent, intervening act and the architect had no specific duty of care to prevent the suicide.

Adjoining Property Owners

In Vikell Investors Pacific, Inc. v. Kip Hampden, Ltd.,²⁸ the defendant car dealership graded the base of a hill to expand its sales lot. The defendant engineer assisted in the excavation. The plaintiff purchased an apartment complex uphill from the dealership. The plaintiff sued after he observed foundation cracking in some of the buildings, alleging claims for breach of fiduciary duty and strict liability. The court held that dismissal of the fiduciary duty claim was appropriate and that in order for strict liability to apply in a lateral support case, it must be found that the weight of the buildings, artificial additions, and fill on the plaintiff's land did not materially increase the lateral pressure. "[A] landowner cannot, by placing improvements on its land, increase its neighbor's duty to support the land laterally."²⁹

In contrast, an engineer was retained by a county to design a replacement bridge. Following the completion of construction, the river flooded and damaged the plaintiff's property. The court held that the engineer should have recognized that its services in designing the bridge were necessary for the protection of...