Insights

The Louisiana Supreme Court’s (“LASC”) recent ruling in Bonilla v. Verges Rome Architects[1] is a reminder to all design professionals to ensure that their contractual arrangements include clearly defined scopes of services and well-defined purposes for such services. This is particularly important when a design professional is offering construction phase services that could be construed as “work” or “supervision” by courts that are unfamiliar with the construction industry. Failure to clearly define those obligations could result in a court expanding obligations beyond what was intended by the design professional, including the imposition of duties owed to third parties. A design professional should also be aware of the general contractor’s obligations under the construction contract to ensure that there is no overlap in responsibilities that could potentially make a design professional responsible for a contractor’s work.

Louisiana courts have consistently held that a design professional’s duties owed to third parties are determined by the express provisions of the contracts between the parties, which would include the design agreement and the general conditions of the construction contract, among other contracts. The following survey of Louisiana cases highlights the importance of including a well-defined scope of services and purpose for those services in a design professional’s contract to avoid having a court expand those obligations beyond what was intended by the design professional. 

In Day v. National U.S. Radiator Corp.[2], the survivors of a laborer who was fatally injured as a result of a boiler explosion sued the architect arguing that the contract documents imposed a duty on the architect to supervise the installation of a hot water system. The plaintiffs argued that that the architect breached his obligation because he was unaware the system was being installed and did not inspect the system during installation or after completion.^[3] The court found that in its contract with the owner, the architect bound himself “to exercise ‘adequate supervision of the execution of the work to reasonably insure strict conformity with the working documents, specifications, and other contract documents’, and this supervision was to include ‘frequent visits to the work site.’”^[4]

The court viewed this site-visit obligation as imposing “the duty or obligation on the architect to insure the owner that before final acceptance of the work[,] the building would be completed in accordance the plans and specifications; and to insure this result the architects were to make ‘frequent visits to work the site’ during the progress of the work.”^[5] More specifically, this Court held that the architect had no duty to inspect or supervise the contractor’s means and methods:

Under the contract they as architects had no duty to supervise the contractor's method of doing the work. In fact, as architects they had no power or control over the contractor’s methods of performing his contact, unless such power was provided for in the specifications. Their duty to the owner was to see that before final acceptance of the work the plans and specifications had been complied with, that proper materials had been used, and generally that the owner secured the building it had contracted for.^[6]

Consequently, and because of the well-defined purpose of the site visits, the architect owed no duty to the deceased laborer, and the claims against the architect were dismissed.^[7]

In Yocum v. City of Minden[8], the Second Circuit held that an engineering firm that was contractually obligated to conduct on-site observations to ensure that the project progressed according to plan and in conformity with the contract documents owed no duty to a contractor’s employee that was injured when an excavation ditch collapsed. The plaintiff argued that because the engineer was present at the ditch in the days before the accident, he was liable for failing to correct, report, or warn of the dangerous slope condition that should have been apparent to a competent engineer exercising due care.^[9] The trial court held that the engineer had no legal or moral duty to warn of the condition of the ditch.^[10]

The Second Circuit, relying on Day, found that although the contract required the engineer to conduct on-site observations, he had limited authority and was prohibited from guiding the contractor or its employees in its methods.^[11] Thus, the engineer did not breach any legal duty created under the contract. Nor did the engineer breach any “moral duty” because he did not know the ditch was dangerous, and no one ever confronted him with complaints about the safety of the ditch.^[12] The engineer testified that he thought the ditch was safe when he saw it prior to the accident and because of the lack of knowledge he could not be held to a moral duty to warn.^[13]

Similarly, in Young v. Hard Rock Construction, LLC[14], the Louisiana Fifth Circuit affirmed a trial court judgment finding that an engineering firm owed no duty to an injured laborer when the contractual provisions expressly placed the responsibility for the construction means and methods and safety under the control of the general contractor. On appeal, the plaintiff argued that the trial court erred in finding that the engineering firm owed no contractual duty to the plaintiff for his safety.^[15] The plaintiff argued that the general conditions of the contract contained exceptions that “shift[] responsibility for means, methods, techniques, sequences, and procedures to the owner if the contractor places the owner on notice of a safety issue.”^[16]

The court reviewed the contract documents between the parties and determined that the engineering firm was not liable to the plaintiff under contract provisions.^[17] The contract executed by the engineering firms contract provided “[t]he Engineer will not have control over, charge of, or responsibility for, the construction means, methods, techniques, sequences or procedures or for the safety precautions and programs in connection with the work.”^[18] The contract further provided “[t]he Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures.”^[19] Based on the provisions, the Fifth Circuit held that the contract documents “gave exclusive control over worker safety, as well as means and methods, to the contractor.”^[20] The court further found that the contractual provisions cited to by the plaintiff did not override the explicit provisions of the contract that “place the responsibility for means and methods, as well as responsibility for its workers’ safety, squarely under the control” of the general contractor.^[21]

Likewise, in Black v. Gorman-Rup, 2000-1223 (La. App. 4 Cir. 7/11/01); 791 So.2d 793, a plaintiff alleged that an engineering firm was negligent in failing to properly supervise the work, design a system to safely remove water from the job site, and by failing to provide a safe place to work.^[22] The engineering firm asserted that its contract was for engineering services involved checking the construction work generally to make sure it complied with the contractual requirements.^[23] The court held that the engineer’s involvement in the construction process did not “create an all-encompassing duty to protect everyone from every risk” that might be encountered during the project:

After a careful review of the contracts, we are of the same opinion as the trial court that Pepper did not have a contractual obligation to supervise construction or site safety. The mere fact that Pepper was involved in the construction process and had contractual duties to the Sewerage and Water Board does not create an all-encompassing duty to protect everyone from every risk which could be encountered during the course of the project. To defeat the summary judgment the plaintiff cannot merely allege that Pepper owed a duty to Ronnie Black, but must demonstrate some basis in law for the imposition of this duty. In the absence of such a duty there can be no liability on the part of Pepper.^[24]

In short, the Fourth Circuit upheld the long-standing principle by this Court and referred to express provisions of the pertinent contracts to define any legal duty owed under the circumstances.^[25]

Finally, in Bonilla v. Verges Rome Architects[26], the Louisiana Supreme Court contemplated whether an architect owed any legal duty to a laborer that was instructed by his employer to jackhammer on the ceiling of a vault while the plaintiff was standing on top of it. The ceiling ultimately succumbed to the plaintiff’s jackhammering thus resulting in the plaintiff falling through the ceiling. Following the reasoning in Day, the court contemplated whether the express provisions of the relevant contracts imposed a duty on the architect. The plaintiff argued that the architect’s obligations to conduct weekly site visits created a duty to report any deviations by the contractor or its subcontractors from the project specifications to ensure site safety.[27] The court disagreed with the plaintiff and found that the express purpose of these visits is to ensure that the owner secures the building it had contracted for and that the “progress and quality” of work is proceeding according to specifications.[28] As such, the architect did not owe a duty to the plaintiff.

This survey of cases above illustrates the importance of defining the scope of services to be performed by a design professional on a project and explicitly stating the purpose for those services. When offering construction phase services, like site visits or site observations, the design agreement should clearly state that the purpose of those visits is to ensure that the progress and quality of the work is proceeding in accordance with the specifications and generally that the owner secures the building it contracted for. The design agreement should also clearly state that site observations or visits should not be construed as “supervision” of the means and methods of the work or “supervision” of site safety. The inclusion of such provisions in the design agreement will help ensure that a court will not expand the design professional duties beyond those explicitly provided in the pertinent contracts.