Section 10 Privity of Contract

• Library: Prof Liability 2005

In general, a plaintiff does not need to establish privity of contract to recover against a design professional in a negligence action. The early Missouri decision of Lottman v. Barnett, 62 Mo. 159 (1876), held that a third party could recover against an architect without privity of contract. Subsequent caselaw has established, for example, that a surety of a construction company may recover damages resulting from an architect’s negligence in failing to supervise construction when the architect is obligated by contract to supervise construction, despite the fact that there was no privity of contract between the surety company on the performance bond and the design professional. See the discussion of liability of the design professional for economic loss” in §4.23 below.

In Aetna Insurance Co. v. Hellmuth, Obata & Kassabaum, 392 F.2d 472, 476–77 (8^th Cir. 1968), the court states:

An architect is not a guarantor or an insurer but as a member of a learned and skilled profession he is under the 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.

The design professional owes a duty to those to whom bodily injury or death is foreseeable even though there is no contract between them and even if the work has already been accepted by the owner of a structure. See Chubb Group of Ins. Cos. v. C.F. Murphy & Assocs., Inc., 656 S.W.2d 766 (Mo. App. W.D. 1983).

The courts have been more reluctant to do away with the privity requirement in the case of land surveyors. In Baublit v. Barr & Riddle Engineering Co., 768 S.W.2d 233 (Mo. App. W.D. 1989), the Western District addressed the issue of whether a cause of action can be maintained against a land surveyor by a party other than the...