Vol. 8 No. 3		March 1989

At times, it seems as if an entire army of potential litigants is waiting out there for you to finish your next design. Should something go wrong, now or forevermore, each seems to be prepared to claim that you owed them a duty and that your failure to fulfill that duty caused them harm.

Clearly, you have a duty to your client. It is to perform your services in accordance with a standard of usual and customary professional care. But, who are those others out there waiting for you to trip and fall? It can be anyone who has a reasonable right to rely on what you do.

Merely claiming that right does not make it so. But the list of those who would position themselves to make that claim is long. It includes the general contractor, subcontractors, material suppliers, workers on the job, adjacent property owners, the owner's lender, subsequent purchasers, future tenants, insurers of all of them, and, of course, the general public.

You cannot preclude any of these ever-reliant souls from filing a lawsuit naming you. In the litigious environment in which we live, defensive lawyering has become as pervasive as defensive medicine. If someone is injured, everyone even remotely connected with the potential cause of the injury is likely to be confronted with a demand for compensation. It is not the greatest of systems, but it is the only one we have.

The problem stems from a lack of clarity in the law. Time was when your only duty, outside your obligation to keep the public safe from harm, was to your client. The legal principle which protected you from claims by others was known as the concept of privity. Under this concept, you were generally not responsible to third parties because you had no contractual obligations to perform for their benefit in the first place. Their claims were barred by the absence of privity.

Privity has been under attack by the plaintiffs' bar for more than half a century. Today, it has been hunted to the point of near extinction. Anyone who can demonstrate that your services were intended for their benefit is in a position to claim that your negligence in performing those services caused the damages they suffered. Whether they will be successful in their pursuit of such a claim is something else again.

There is no clear line that can be drawn which says your responsibility ends here. Where that line falls is likely to depend on the unique circumstances surrounding each claim. It may even depend upon the jurisdiction in which the arguments are heard.

But, if you understand the arguments and how the courts are likely to evaluate their merits, you can take steps, in advance, to control the extent of your unanticipated obligations to others. When all is said and done, this can save you time, money, and emotional energy better spent on the creative aspects of your practice. Here are some typical, real-life examples:

1. A general contractor, ordered to correct a sewer installation which was off-grade and off-line, sued the project engineer on the grounds that its unanticipated costs resulted from the engineer's failure to adequately monitor construction. The engineer's on-site services, so ran the argument, were intended for the contractor's benefit. But for the engineer's negligence in performing those services, the faulty installation would not have occurred.

2. A property insurer sued the architect on a project for a loss which occurred shortly after occupancy as a result of the freezing of pipes and ensuing water damage. The insurer claimed that the loss resulted, at least in part, from the architect's negligent supervision of construction.

3. An engineering firm retained to ensure the expeditious and economical installation of 18 miles of telephone cable was sued by the estate of a worker killed in a collapse of an unshored trench. The suit alleged negligent failure to provide safe working conditions. It was based on the premise that the engineer owed a duty to the contractor's employees to ensure the safety of the site.

None of these lawsuits resulted in an adverse judgment. All involved a question of duty, the answer to which hinged, in large part, on the language contained in the agreement between the engineer or the architect and the project owner. In each case, the plaintiff was badly out of position.

The message is clear: Keep third parties in mind when you negotiate your contract with your client. That is the first place the courts will look to determine whether a duty existed in the event one of those third parties should suffer a loss.

Adequate protection may require negative representations. This is not a matter of avoiding responsibilities that ought reasonably to be yours; it is a matter of clarity. Consider reviewing with your attorney the advisability of making certain the following provisions are included in an appropriate form in the agreements you sign:

1. The services to be performed by the Architect/Engineer under this Agreement are intended solely for the benefit of the Owner. Nothing contained herein shall confer any rights upon or create any duties on the part of the Architect/Engineer toward any person or persons not a party to this Agreement including, but not limited to any contractor, subcontractor, supplier, or the agents, officers, employees, insurers, or sureties of any of them.

2. The Owner and the Architect/Engineer waive all rights for damages, each against the other and against the contractors, consultants, agents, and employees of the other, but only to the extent covered by property insurance during or after construction, except such rights as they may have to the proceeds of such insurance. The Owner and the Architect/Engineer each shall require similar waivers from their contractors, consultants, and agents.

3. The Architect/Engineer shall not be responsible for the means, methods, procedures, techniques, or sequences of construction, nor for safety on the job site, nor shall the Architect/Engineer be responsible for the contractor's failure to carry out the work in accordance with the contract documents.

These may not be conclusive protections, but they can be of great help in fending off claims of questionable merit. There is another side to the coin, however: If you knew, or should have known, that a third party would rely on your performance, and reasonably so, you are likely to be held responsible to that third party regardless of what your agreement might say. The best remedy you have is to exercise usual and customary professional care. This, fortunately, is something you do often and well.