Section 3.7.14 Duty Is Question of Law

• Library: Construction Law Practice Manual 3rd Edition 2016

§ 3.7.14 Duty Is Question of Law

As previously noted, the first issue any judge or arbitrator must decide in a professional liability claim is whether the design professional has a duty to the claimant under the facts alleged in its complaint. If there is no duty, a negligence action cannot be maintained.¹²⁴ The existence of a duty is never presumed and a duty of care is not owed “at all times to all people under all circumstances.”¹²⁵ The presence or absence of a duty cannot be determined by expert testimony because it is a question of law for the court to determine.¹²⁶

Agreements between design professionals and their clients are contracts for personal services, to provide advice and information for the use of that particular client.¹²⁷ A design professional’s duty in connection with a particular project or professional service is defined by his or her contractual scope of services.¹²⁸ However, courts may infer in the contract an implied obligation to produce drawings and specifications that are “adequate” to satisfy the minimum standards set by building codes.¹²⁹ Moreover, the scope of a professional’s legal duty to third parties under a negligence standard is ordinarily circumscribed by the terms of the design professional’s contract with its client.¹³⁰

There are many situations in the typical construction project where the architect or engineer does not have a duty of care to third parties.¹³¹ For example, the general contractor owes a duty of care to its subcontractors’ employees to maintain a safe workplace.¹³² But Arizona courts have held that the project architect does not assume a similar duty of care to protect workers from injury simply by performing its contractual duty to provide “general supervision to guard the owner against defects and deficiencies in the work of contractors.”¹³³ Analogies may also be drawn from cases concluding that a duty of care applicable to the design or stated purpose of a project does not extend to persons who are trespassing or otherwise acting in a manner that is contrary to law and not reasonably anticipated.¹³⁴

Nor does a design professional have tort liability to a third party for exercising?or failing to exercise?its contractual powers to stop work to ensure compliance with the plans and specifications for the project.¹³⁵ An engineer (or other design professional) charged with the contractual duty to inspect the contractor’s work for compliance with plans and specifications has no duty to protect a subcontractor’s employee from injury caused by a hazard hidden in that work.¹³⁶

When the claimant is a third party who does not have a contract with the design professional, there is no presumption of duty arising solely from the greater skill, knowledge, education, or experience inherent in the design professional’s status: “The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”¹³⁷ Where a homebuilder hires a land surveyor to lay out the foundation of house, the builder’s client does not become a party to any contract with the surveyor, and may not sue the surveyor for breach of contract for an error in that survey.¹³⁸ Whether the homeowner has a tort cause of action against the surveyor would depend on an analysis of substantive law according to Sullivan I and II to determine whether a duty of care exists.

Nor is a duty of care created by a mere request for help, or by unilaterally being told by another that a duty exists.¹³⁹ And as for completed projects, there is no duty to warn about construction that is not inherently, intrinsically, or abnormally dangerous.¹⁴⁰

In the absence of an express undertaking to protect the interests of the third party, or the limited duty of care imposed by § 552 of the...