A Florida federal court recently issued a favorable decision for design professionals holding that design professionals do not automatically owe a duty or obligation towards design build contractors.
In Recreational Design & Const. Inc. v. Wiss, Janney, Elstner Associates, Inc., 10-CV-21549, 2011 WL 5117163 (S.D. Fla. Sept. 20, 2011), a design-build contractor sued independent engineering firms hired by the city to evaluate work performed by the design-build contractor for professional negligence. The firms found that a waterslide was structurally unsafe and recommended repair. Based on this recommendation, the city red-tagged the project, despite the design-build contractor’s initial tests that found the slide to be safe. The contractor later re-did work at its own cost.
The Court held that the independent engineering firms hired by the city for inspection purposes had no duty or special relationship with the design-build contractor. According to the Court, the design-build contractor bore sole responsibility to plan and design the municipal pool project and waterslide.
It is important to clarify that the hiring of a design firm to review, evaluate and perform field inspection services will not automatically create a duty or obligation on the part of that consulting design professional’s firm toward the design-build contractor. This promotes clarity and avoids the need to account for potential liability in this narrow category of services rendered by design professionals.
George R. Truitt, Jr., is the Managing Partner of the Cole, Scott & Kissane, P.A.’s (“CSK’s”) Construction Group, which is dedicated exclusively to the counseling and litigation of construction-related matters. Mr. Truitt is a Board Certified Specialist in Construction Law. He was admitted to the Florida Bar in 1992 and has been A-V Rated by Martindale Hubbell since 1998. For the past seventeen years, he has devoted his practice to construction litigation and risk management counseling, including the representation of design professionals in professional liability claims, developers, contractors, and subcontractors in construction defect, contract, and lien enforcement claims, and payment and performance bond sureties in public and private bond and subrogation claims.
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