Section 3.7.11 The Implied Warranty of Design Is an Anomaly

• Library: Construction Law Practice Manual 3rd Edition 2016

§ 3.7.11 The Implied Warranty of Design Is an Anomaly

Given the supreme court’s efforts to define clear boundaries between tort and contract causes of action using the draft RESTATEMENT (THIRD), the Arizona Court of Appeals decision in North Peak Construction, LLC. v. Architecture Plus, Ltd.⁹⁹ that a design professional impliedly warrants its plans to the contractor who uses them cannot be reconciled.¹⁰⁰ While North Peak invokes Donnelly’s heritage, closer analysis calls into doubt the basis or need for this additional theory of liability.

The Arizona Supreme Court stated in Donnelly that, “Design professionals, in the absence of an express guarantee, do not ‘warrant’ that their work will be ‘accurate,’ [citation omitted]. Rather, … they ‘warrant’ merely that they exercised their skills with care and diligence and in a reasonable, non-negligent manner.”¹⁰¹ Donnelly, in turn, drew support from L.H. Bell & Associates, Inc. v. Granger,¹⁰² a negligence claim involving flood damage to property abutting a bridge that was allegedly inadequate for a 100-year storm event. L.H. Bell rejected the design engineer’s defense that it was not liable for flood damage to the adjacent landowner’s property because its bridge design was accepted and built by its client, Maricopa County. L.H. Bell was clearly a negligence case in the court’s analysis, and its only mention of an implied “warranty” of professional services cited a Florida case...