Independent Engineering Firms Hired To Evaluate A Design-Build Contractor’s Work Had No Special Duty Toward That Design-Build Contractor

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.