Section 13 Alternate Theories of Liability

• Library: Prof Liability 2005

Although privity of contract is not a necessary element in an action against an architect or engineer, a contractual relationship can certainly form the basis for an action for breach of contract against a design professional. As suggested in §4.10 above, the design professional often enters into detailed contracts that set out the scope of the architectural, engineering, or construction administration services to be provided. An action for breach of contract would be governed by the principles of contract law, but expert testimony may still be required to establish breach of a contractual obligation that may in turn require compliance with professional standards.

Other theories of liability against design professionals have not been readily accepted by the courts. For instance, in Chubb Group of Insurance Cos. v. C.F. Murphy & Associates, Inc., 656 S.W.2d 766 (Mo. App. W.D. 1983), the court of appeals addressed a number of issues arising out of the collapse of the Kemper Arena in Kansas City. The court reconfirmed that design professionals owe a duty of professional care to third parties with whom they have no contractual relationship. Despite lack of privity, the architect and engineer can be liable to third persons for injuries when the injuries to those persons are foreseeable. This is true despite the fact that the work of the design professional has been accepted by the owner of a building or project. Nonetheless, the court held that the architect and consulting structural engineer could not be held strictly liable under Restatement (Second) of Torts § 402A (1965) to tenants of the collapsed arena because the policy considerations of § 402A are not applicable to a contract for professional services.

Litigants have argued that the existence of licensing statutes and regulations create a presumption that they were enacted for the protection of the public, thus giving rise to per se civil liability for any failure of a design professional to meet the requirements of the statutes or regulations. See Gipson v. Slagle, 820 S.W.2d 595, 597 (Mo. App. W.D. 1991). The Gipson court noted that, while the statutes and regulations were enacted for the general purpose of protecting the public, they do not sufficiently designate a class of persons that they are intended to protect for per se liability purposes. Id.

Litigants and their experts have sought to impose a duty, and therefore liability, on design professionals by virtue of the sole fact that they placed their professional seal on a set of drawings. Advancing this theory, these parties claim that duties exist over and above the standard of care of professionals because of the existence of Missouri’s regulatory scheme and statutes. The statutes also include administrative procedures for discipline and requirements for licensure, which some argue creates a duty of care giving rise to a cause of action when problems arise.

A case widely cited by civil litigants hoping to advance this theory is Duncan v. Missouri Board for Architects, Professional...