Section 3.8.13 The ELR and Design Professionals: The Preeminence of Donnelly

• Library: Construction Law Practice Manual 3rd Edition 2016

§ 3.8.13 The ELR and Design Professionals: The Preeminence of Donnelly

One need look no further than Donnelly Construction Co. v. Oberg,⁵⁰ for viable remedies against design professionals. In the aftermath of Flagstaff Affordable Housing and the maelstrom of recent Arizona appellate ELR decisions, Donnelly remains unscathed. There, a general contractor brought suit against the owner’s architect, complaining that the architect’s defective plans caused the general contractor to incur extra building costs. Finding that design professionals have a duty to use ordinary skill, care and diligence in rendering their professional services, an implied duty that transcends their contractual duties, the Supreme Court of Arizona ruled that the aggrieved contractor stated viable claims against the design professional, notwithstanding the absence of privity between plaintiff and defendant. Those claims included negligent misrepresentation, negligence, and breach of the common law, i.e., implied warranty that they exercise their skills with care and diligence and in a reasonable, non-negligent manner.⁵¹

In so ruling, the court relied on L.H. Bell & Associates v. Granger,⁵² in which the Supreme Court of Arizona had found a civil engineer, engaged by Maricopa County, liable for flood damages sustained by adjacent landowners due to the engineer’s negligent design of a bridge and its approaches, and...