David M. Duree and Associates, P.C.
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Engineering Law

David M. Duree is an Attorney and a registered Professional Engineer with more than 40 years experience in handling lawsuits involving engineering defects and engineering negligence claims. With offices in St. Louis, Mo. and O’Fallon, Ill., he also handles cases in numerous other states.

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Law updates about Engineering and Design Professionals, Engineering Negligence, Architect liability, Professional liability, OSHA construction law, Engineering Claims, OSHA construction standards and more. Engineering Attorney.

These materials are in reverse chronological order. New material is added at the top. Older material is inserted in the correct chronological spot. Overruled, modified and/or obsolete material is deleted, revised, consolidated and/or moved, when appropriate. Citations preceded by <>are linked to the complete court opinion. (NOTE: Some linked court sites are not always available).

An engineering firm, hired by landowners to survey a subdivision, erroneously relied on prior surveys of the exterior boundaries, without verifying them. It would have taken only minutes to verify the prior inaccurate surveys. The engineering firm thereby breached its implied contractual duty to perform with care, skill, reasonable expedience and faithfulness, entitling the landowners to recover damages for attorney’s fees in defending a prior case resulting from the accurate survey of the defendant and for lost profits. <>Bull v. Pinkham Engineering Assocs., Inc., 752 A.2d 26, 2000 WL 426378 ( Vt. 4-21-2000)

Home owners acting as the general contractor could recover economic loss damages (the costs of reconstruction) from an engineer and his employer for gratuitously but negligently testing the foundation concrete and for negligently misrepresenting the results of the test. The economic loss doctrine and the absence of privity of contract between the engineer (and his employer) and the home-owners builders did not preclude recovery. <>Miller v. Big River Concrete, LLC et al., 14 S.W.3d 129 (Mo. App. 2000)

Engineer’s liability to homeowners, insureds, was not established. The engineering firm had advised its employer, the insurer, that hail stones less than one inch in diameter would not cause storm damage to composition shingle roofs. The engineering firm knew the storm in question produced hail stones from to 1/2″ to 3/4″ in diameter. There was no privity of contract between the engineering firm and the homeowners, and the engineering firm did not misrepresent facts, in expressing its opinion to its employer. There was also no actionable claim for wrongful interference with contract (the insurance policies), for negligence, civil conspiracy or for violation of the Texas Deceptive Practices, Consumer Protection Act. <>Dagley et al v Haag Engineering Co., 18 S.W.3d 787, 2000 WL 328389, ( Tex. App. 3-23-2000)

An owner-architect contract to provide an initial analysis of the owner’s design needs, with hourly compensation for services and no express provision for the duration, was terminable at will by either party after reasonable duration and upon reasonable notice. Accordingly, the architectural firm could not recover from another architectural firm, which was hired to design the project, for interference with contract rights or for misappropriation of intellectual property (the plaintiff firm’s initial design work), or for breach of contract against the owner. <>Oliver Design Group, Inc v. Allen-Bradley Co., _____N.E. 2d_____, 2000 WL 235769, (Ohio App. 3-2-2000)

Substantial evidence supported the finding of the State Board of Architects’ finding that an individual was practicing architecture without a license, by preparing construction documents, and was not working under the supervision of a licensed architect. The Board, however, was arbitrary and capricious when it fined the individual $20 per calendar day, for each of three projects, from the initial violation until the hearing (totaling $48,000). Case remanded to the Board to reduce the penalty. <>McQuay v.Arkansas State Board of Architects, 989 S.W.2d 499 (Ark. 1999)

The owner of a townhouse complex brought suit against an architectural firm, soils engineer and structural engineer after cracks developed the foundations. A professional who is in the business of supplying information for the guidance of others may be held liable for purely economic losses (not resulting from personal injury or property damage) for negligent misrepresentations, as an exception to the economic loss rule. However, the architectural firm and soils engineer were retained to build a structure rather than provide information, and thus did not come within the exception to the economic loss rule. The case was remanded as to the structural engineer because additional evidence was required to determine if he was engaged for the purpose of supplying information. <>Tolan and Son, Inc. v. KLLM Architects, Inc, et al., 308 Ill.App.3d 18, 241 Ill.Dec. 427, 719 N.E.2d 288 (Ill. App. 1999)

Individuals professional engineers may be held liable to homeowners for negligently inspecting a house, even though the inspection services contract is between the homeowners and the professional engineering corporation which employs the individual engineers. The statutes regulating professional engineering do not permit the individual engineers to escape responsibility for their conduct, and they may not contractually limit their common law and statutory duties. The economic loss rule also does not preclude the homeowners from recovering purely economic losses (there were no personal injuries or property damage) in tort. The economic loss rule is limited to products liability contexts and similar circumstances. <>Moransais v. Heathman et al., 744 So.2d 973 (Fla. 1999)

A project engineer, which contracted with Harrison county, Miss. to provide design and project administration services for a public wastewater treatment plant, was entitled to the same sovereign immunity as the county, for a subcontractor’s tort claims. The engineer’s liability, under design professional law, was not reached. The delay damages clause was not superceded by federal regulations, and therefore also applied to deny such claims, and the subcontractor’s claims did not flow though the general contractor to the owner. The liquidated damages assessed by the owner were enforced. A previous decision in the same case is reported at 81 F.3d 1412, (5th Cir. 1996); <>PYCA Industries, Inc, et al., v. Harrison County Waste Water Management District, et al., 177 F.3d 351 (5th. Cir. 1999)

A Condominium Association could maintain an action against an Architect for negligently misrepresenting that the project met the state’s minimum building codes, when it did not. The economic loss rule does not bar negligence claims against professionals in Florida, even though the damages are purely economic in nature. <>Stone’s Throw Condominium Association, Inc. v. Sand Cove Apartments, Inc, et al., 749 So. 2d 520 (Fla. 1999)

A judgment against the designing architect for more than $5,800,000 (with interest), under design professional law, was affirmed by the Missouri Supreme Court, which found that the damages occurring when marble panels fell from the side of a building were not capable of ascertainment until then. As a result the 5 year statute of limitations for negligence actions began from the date the marble panels fell, not the date on which the design work was performed. An earlier opinion in the same case is reported at 891 S.W.2d 438; <>Business men’s Assurance Company of America v. Graham, representative for Skidmore, Owings, & Merrill, et al., 984 S.W.2d 501 (Mo. banc 1999)

A construction firm used improper electrical equipment during tunnel construction resulting in a methane gas explosion and the death of three employees. The engineering services contract between the owner and engineering firm had the usual clauses imposing no responsibility on the engineers for the safety practices of the contractors and permitting only the owner to stop work. The engineer was required to redesign work, when requested by the owner, which was underway at the time of the explosion. OSHA issued a citation to the engineering firm, finding that it was actually involved in construction activities at the time of the explosion under OSHA construction law. The Court of Appeals vacated the citation, finding that while the engineering services and other contracts do not per se exclude design and other professionals from liability for OSHA construction standards, in this case the engineering firm was not engaged in construction work and thus was not subject to OSHA construction standards, under OSHA construction law. <>CH2M Hill, Inc v. Alexis Herman, Secretary of Labor, et al., 192 F.3d 711 (7th Cir. 1999)

An architect’s license in California was properly revoked for conduct in other states before he was admitted in California, even though no violations occurred in California and no California clients were harmed. <>Hughes v. Board of Architectural Examiners, 68 Cal. App.4th 685, 80 Cal Rptr.2d 317, (Cal. App., 3rd dist., 1998)

The claims of individual (union member) employees, against the general contractor and project operator, of a subcontractor, which was terminated by the general contractor in a dispute about which would pay for the employees’ break time, were preempted by the National Labor Relations Act, 29 U.S.C. 157, 158. The employees claimed wrongful interference with their employment contracts and intentional infliction of emotional distress. Volentine et al., v. Bechtel, Inc and Mobil Chemical Co., 27 F. Supp.2d 728 (E.D.Tex. 1998)

An architect did not aid and abet the unlicensed practice of architecture by reviewing drawings prepared by a draftsman who was not licensed as an architect, where the architect had direct professional knowledge and direct supervisory control over the drawings. Thus, the architect did not violate the professional ethics code, or design professional law, by placing his seal on the drawings. <>The State Board of Architects v. Clark, 689 A.2d. 1247 ( Md. App. 1997)

Forensic engineers (expert witnesses) who perform tests, testify, advertise their services or otherwise hold themselves out as professional engineers in Illinois, must first be licensed as professional engineers by the State of Illinois, under the Professional Engineering Act, 225 ILCS 325/1 et seq., to avoid charges of unlicensed practice. The practice of forensic engineering in Illinois for 20 years before the act was amended (in 1989) to include forensic engineering does not fall within the grandfather clause. Licensing is still required to practice forensic engineering after the effective date of the amended act. Miller v. Department of Professional Regulation, et al., 276 Ill.App.3d 133, 213 Ill.Dec. 53, 658 N.E.2d 523 (Ill App. 1995); Charles Van Breeman v. Zollar, Director of the Department of Professional Regulation et al., (unreported) 96 C 7095, 1997 WL 124266 (N.D. Ill 3-14-1997)

A letter from an engineer to prospective purchasers of a home, indicating that there were significant water leakage problems in the basement, and the estimated cost of repairs, expressed the opinion of the engineer, did not misrepresent facts and did not employ the “improper means” required for establishing the engineer’s liability for tortious interference with a business expectancy. <>Baldwin Properties, Inc v. Sharp, 949 S.W.2d 952, (Mo. App. 1997)

The Board of Regents issued a valid administrative regulation in deleting from the definition of “unprofessional conduct” the delegation of design work from one licensed professional to another, under the design professional law. The regulation was in harmony with the statute regulating the professions of engineering, architecture and land surveying. The challenge to the rule by an association of professional contractors was rejected. In the Matter of General Building Contractors of New York State, Inc v. New York State Education Department, et al., 670 N.Y.S.2d 697, 175 Misc. 2d 922, ( N.Y. 1997)

The testimony of two foundation repair experts (nonengineers) was sufficient to establish the applicable standard of care for a professional engineer, because the homeowner’s claim of negligence was based on the standard of care of foundation specialists ( not engineers), the foundation repair experts were qualified to engage in the same line of work, and the foundation expert had corrected the problem. Yantzi v. Norton, 927 S.W.2d 427 (Mo. App. 1996)

An excavation company worker was killed when a trench collapsed at a sewer installation site. The engineer could be held liable in negligence where its contract imposed responsibility for the progress of the work, but not for safety conditions. Here the engineer was aware that the trench was unsafely constructed. The contract clauses under which the general contractor and owner indemnified the engineer were also void as against public policy. <>Carvalho v. Toll Brothers and Developers, et al., 675 A.2d 209 (N.J. 1996)

The Owner retained an engineering firm to provide engineering services for a $105,000,000 plant expansion. The engineering firm sent its standard engineering services contract to the owner, which was not signed. It required the firm to follow “good engineering practices”. The owner sent the firm a purchase order, which not rejected by the firm. The purchase order imposed a higher standard on the engineering firm, requiring the materials and other articles covered by it to be free from “defects in material and/or workmanship, and merchantable”. The parties then signed an amendment that modified the engineering firms unsigned standard contract “as referenced” in the owner’s purchase order. Since this contractual arrangement was ambiguous about the standard of care imposed on the engineering firm, the intent of the parties was submitted to the jury, which found for the owner. The resulting judgment was affirmed. <>Chesapeake Paper Products Co. v. Stone & Webster Engineering Corp. 51 F.3d 1229, (4th Cir. 1995)

Property owner and joint venture could be third party beneficiaries of contract between general contractor and subcontractor only if the intent to confer such benefit is established with clear evidence, which did not exist here. The engineering firm could not be held liable in tort for economic losses to the property which was the subject of the contract, under the economic loss rule, but could be held liable for negligently causing economic losses to other property. The statute of limitations for negligence claims against the engineer was tolled by the “discovery rule” until the owner discovered the resulting damage. Thomson v. Espey Huston & Associates, Inc, 899 S.W.2d 415 (Tex. App. 1995)

A General Contractor could recover purely economic damages from the engineer which designed and administered the project under negligent design, negligent administration and breach of implied warranty theories notwithstanding the absence of a contract between them. The engineer owed a duty to the contractor to refrain from negligently designing or administering the project. The economic loss rule did not bar the claim. Tommy L. Griffin Plumbing & Heating Co. v Jordan, Jones & Goulding, Inc. 463 S.E.2d 85 (S.C. 1995)

In 1990 the Copyright Act, 17 U.S.C. 102(a)(5), was amended to specifically protect “pictorial, graphic, or sculptural works,” including technical drawings, architectural plans, diagrams, and models. Engineering drawings are also protected by the act. Guillot-Vogt Associates, Inc. v. Holly & Smith, 848 F.Supp. 682 (E.D. La. 1994); an “architectural work” for purposes of copyright protection is a design as embodied in a tangible medium of expression, including architectural plans or drawings, and includes overall form as well as arrangement and composition of spaces, elements, and design, but does not include individual standard features. CSM Investors, Inc. v. Everest Development Ltd., 840 F.Supp. 1304 (D.Minn. 1994); in order for a designer to be considered the owner of a copyright and thereby protected by the act, the work must be a work “made for hire” under a written agreement or by an employee. Bryce & Polazzola Architects, Inc. v. A.M.E. Group, 865 F.Supp. 401 (E.D.Mich. 1994)

The construction manager/contractor on the Admiral reconstruction project did not have a cause of action for tortious interference with contract rights against the architect. The contracts between the architect and owner and between the owner and construction manager/contractor required the architect to perform the activities which the construction manager/contractor claimed to be a tortious interference with its rights under its contract with the owner. Fleischer-Seeger Construction Co. v. Hellmuth, Obata, & Kassabaum, 870 S.W. 2d 832 (Mo. App. 1993). Engineering Lawyer.

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An architect could be held liable to the project developer, under an indemnification clause, for claims against the developer based upon economic loss (not for injury to person or property). An Illinois Statute bars indemnification for injuries to persons or property on construction projects. Granville Beach Condominium Ass’n v. Granville Beach Condominiums, Inc., 227 Ill. App. 3d 715, 169 Ill. Dec. 673, 592 N.E. 2d 160 (Ill. App. 1992)

A subcontractor who has been fully paid by the owner for performance of the construction contract may, despite the lack of contractual privity, recover in tort from the construction manager for economic losses caused by negligent misrepresentations by the construction manager and its on-site superintendent. The negligent misrepresentations may be in the form of either directions or supervision. John Martin Co., Inc. v. Morse/Dielsel, Inc., 819 S.W. 2d 428 (Tenn. in banc 1991)

The licenses of structural engineers and their firm to practice engineering in Missouri were properly suspended where the engineers put their seal on plans and specification, under R.S.Mo. § 327.401.2 (2), certifying that the design work was performed under their immediate and personal supervision, without reviewing and approving the shop drawings for the structural steel, the failure of which resulted in the collapse of the Hyatt Regency Hotel in Kansas City on July 17, 1981. The engineer’s liability was also established in a personal injury, wrongful death, civil action. The Missouri statute governing the licensing of engineers and architects was not unconstitutional. Holding the engineer in charge subject to discipline, for affixing his seal to the plans of a suspended walkway, when the plans were submitted to him by the engineer in charge of that subproject, was not an imposition of vicarious liability. Under Missouri statutes, an engineer who affixes his seal to plans is responsible for any errors within those plans, since he certifies that the plans were prepared under his immediate and personal supervision. Here the general engineer failed to include a disclaimer when he sealed the defective plans. Duncan et el. v. Missouri Board of Architects, Professional Engineers and Land Surveyors, 744 S.W. 2d 524 (Mo. App. 1988)

An architect is not obligated to verify the authenticity of lien waivers before approving payment to the general contractor. Fabe v. W.V. P. Corp., 760 S.W. 2d 490 (Mo. App. 1988)

An architect may be found liable to a contractor for economic loss not-withstanding the absence of a contract between the architect and the contractor. The architect’s duty of due care extends to the contractors who reasonably rely on the proper performance of the architect’s duties under the architect’s contract with the owner. Forte Bros., Inc. v. National Amusements, Inc., 525 A.2d 1301 (R.I. 1987); Milton J. Womack, Inc. v. House of Representatives of the State of Louisiana, 509 So. 2d 62 (La. App. 1987), writ denied, 513 So. 2d 1208 (la. 1987)

An architect or engineer has a conditional privilege to interfere with a construction contract of its principal (owner), under design professional law. A contractor claiming tortious interference by the architect or engineer must establish that the architect or engineer acted with actual malice, to establish a claim. Certified Mechanical Contractors, Inc. v. White & Co., 162 Ill App. 3d 391, 113 Ill. Dec. 888, 515 N.E. 2d 1047 (Ill. App. 1987)

Economic losses are recoverable from an engineer upon establishing the engineer’s liability for tortious interference with contract rights, although a professional has a conditional privilege, under design professional law, to protect the interests of its principal (owner) which justifies an interference that would otherwise be improper. Claims for tortious interference are among the exceptions to the economic loss doctrine established in Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 61 Ill. Dec. 746, 435 N.E. 2d 443 (Ill. 1982). The Economic Loss Doctrine precludes the recovery of “contracts type” damages under tort theories where there is no cataclysmic occurrence, property damage or physical injury. Santucci Const. Co. v. Baxter & Woodman, Inc., 151 Ill. App. 3d 547, 104 Ill. Dec. 474, 502 N.E. 2d 1134 (Ill. App. 1986)

Builders and architects were held liable to condo unit owners, despite the absence of privity, for economic harm (the cost of precautionary repairs) resulting from defective construction that threatened the owners with physical injury and with violation of the building codes. Council of Co-owners Atlantis Condominium, Inc. v. Whitting Turner Contracting Co. et el., 517 A. 2d 336 (Md. App. 1986)

A contractor’s deviation from the plans will relieve the design engineer from liability for a negligent design of a walkway only if the deviations served independently to break the causal connection between the negligent design and the damages, by completely removing the effects of any negligence by the design professionals. The evidence established questions of fact for the jury on these issues. A new trial was ordered because of error in the jury instructions. Cincinnati Riverfront Coliseum, Inc. v McNulty Co., et al., 504 N.E.2d 415 (Ohio 1986)

The engineer was a third party beneficiary of the contract between the owner and the contractor and the no delay damages clause contained therein. Subcontractors could not claim damages against the owner or the engineer where the subcontracts incorporate by reference the terms of the prime contract. Bates & Rogers Construction Corp. v. Greeley & Hansen, 109 Ill. 2d 225, 93 Ill. Dec. 369, 486 N.E. 2d 902 (Ill. 1985)

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The architect was denied indemnification from the contractor, under AIA Document A-201¶ 4.18.1, for injuries to a third party resulting from the architect’s negilgence in approving non-conforming shop drawings. Henningson, Durham & Richardson, Inc. v. Swift Brothers Construction Co. 739 F. 2d 1341 (8th Cir. 1984)

The architect’s certification of the date of completion was binding, under a clause in the contract, absent fraud or bad faith by the architect. Transamerica Ins. Co. v. Housing Authority of Victoria, 669 S.W. 2d 818 (Tex. App. 1984)

Liability could be established for an architect’s negligence while interfering with a tenant’s right to use and enjoy a leasehold. Chubb Group of Ins. v. C.F. Murphy & Assoc., 656 S.W. 2d 766 (Mo. App. 1983)

Construction company employees recovered for an architect’s negligence in failing to detect and correct errors in shop drawings for steel stairs, which collapsed and injured the employees. Since the claim arose from the architect’s negligence in supervising the project, expert testimony on the appropriate standard of care was not required. Jaeger v. Henningson, Durham & Richardson, Inc., 714 F. 2d 773 (8th Cir. 1983)

An architect’s duty imposed by contract or a statute is generally non-delegable. An express warranty by the contractor, in a contract to build a waste water treatment plant, was not a defense to the architect-engineer, which was charged with professional negligence. Mayor & City Council of Columbus v. Clark-Dietz Associates Engineers, Inc., 550 F. Supp. 610 (N.D. Miss. 1982)

An engineer which negligently certifies payments to the bonded contractor may be held directly liable to the contractor’s surety, in negligence, for permitting the overpayment, where the surety was required to complete the project and/or correct the deficiencies. The duty owed to the surety is the same as the duty owed to the owner. American Fidelity Fire Insurance Co. v. Pavia-Byrne Engineering Corp., 393 So. 2d 830 (La. 1981)

A no delay damages clause in a contract between the contractor and owner was a bar to the contractor’s suit against the owner for delay damages, but did not bar the contractor’s suit against the architect/engineer for negligently delaying the contractor. The “Economic Loss” Doctrine was not applied to professional malpractice negligence claims. Bates & Rogers Construction Corp. v. Northshore Sanitary District et al, 92 Ill. App. 3d 90, 47 Ill. Dec. 158, 414 N.E. 2d 1274 (Ill. App. 1981)

The decisions of the architect on whether the work complied with the plans and specifications will be upheld, where there is no evidence that the architect acted in bad faith or with gross negligence. The contract provided that the decision of the architect on these issues would be final. Gold v. National Savings Bank, 641 F. 2d 430 (6th Cir. 1981)

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Expert testimony is admissible to explain plans and specification or other written documents of a technical nature. Busch & Latta Painting v. Missouri State Highway Commission, 597 S.W. 2d 189 (Mo. App. 1980)

Damages for “economic loss” in tort actions may not be recovered from a design professional, such as an architect, except for negligent misrepresentation or intentional misrepresentation (fraud). 2314 Lincoln Park West Condo Assoc. v. Mann, Gin, Ebel & Frazier, 136 Ill. 2d 302, 144 Ill. Dec. 227, 555 N.E. 2d 346 (Ill 1990); Soules v. General Motors Corp., 79 Ill. 2d 282, 37 Ill. Dec. 597, 402 N.E. 2d 599 (Ill. 1980)

A subcontractor was permitted to recover damages against the structural engineer for negligent interpretation of the plans and specification. Lane v. Geiger-Burger Associates, P.C. 608 F. 2d 1148 (8th Cir. 1979)

A professional engineering corporation which failed to obtain the annual authorization to practice from the Missouri Board of Architects and Professional Engineers, was not authorized to pursue its claim for a mechanic’s lien for professional engineering services rendered. Maran-Cooke, Inc. v. Purler Excavating, Inc, 585 S.W. 2d 38 (Mo. 1979)

A construction contract provided that the engineer’s decisions were controlling on issues concerning the performance of the contract. The decisions of the engineer are binding unless the contractor establishes that the engineer acted in bad faith. Bernard McMenamy Contractors, Inc. v. Missouri State Highway Commission, 582 S.W. 2d 305, (Mo. App. 1979)

A school board-owner recovered from the architect for breach of the architect’s implied duty, in the contract between the school board and the architect, to specify the use of reasonably good materials. Board of Education v. Del Biano & Associates, Inc., 57 Ill App. 3d 302, 14 Ill. Dec. 674, 372 N.E. 2d 953 (Ill. App. 1978)

An engineering company which designed a telephone cable system, which had the right to inspect the work as it progressed and to make sure that the work conformed to plans and specifications, but which did not exercise control over the contractor’s methods of performing the work, was not liable to the contractor’s employee injured in a trench cave-in. There was no duty. Smith v. Enter-City Telephone Co., 559 S.W. 2d 518 (Mo. Banc. 1977)

Where the construction documents gave the architect authority to reject work and the architect was required to keep the owner informed of the progress of the work based upon his “on-site observations”, the architect had a duty to exercise reasonable care and skill in supervision of the construction. Dickerson Construction Co., Inc. v. Process Engineering Co., Inc., 341 So. 2d 646 (Miss. 1977)

An architect owed no duty to a contractor’s employee (and his personal representatives) who died after falling through a hole in the roof of a building under construction. The hole in the roof was not a defect in the plans or specifications. The architect had no contractual, or other, duty to supervise construction. Brown v. Gamble, 537 S.W. 2d 685 (Mo. App. 1976)

A general contractor can recover in negligence against a supervising engineer which breaches its duty to avoid negligently causing additional expense in the completion of a construction project, even though there is no privity of contract between the supervising engineer and the general contractor. There was no issue about the applicability of a no delay damages clause. Subsequent cases have afforded the benefits of such clauses in the Prime contract to Architects and Engineers employed by the owner. Normoyle-Berg & Associates, Inc. v. Village of Deer Creek et el., 39 Ill. App. 3d 744, 350 N.E. 2d 559, (Ill. App. 1976)

An architect has a duty to exercise the ordinary and reasonable skill usually exercised by one in his profession in preparing plans and specifications. His duties depend upon the particular agreement between him and his employer. In the absence of a special agreement, he does not imply or guarantee a perfect plan or satisfactory result. He is liable only if he fails to exercise reasonable care and skill. Mississippi Meadows, Inc. v. Hodson, 13 Ill. App. 3d 24, 299 N.E. 2d 359, (Ill. App. 1973)

The architect is the agent of the owner for the purposes of receiving progress reports, where the contract provides that the reports shall be delivered to the architect. Consumer’s Construction Co. v. County of Cook, 1 Ill. App. 3d 1087, 275 N.E. 2d 696 (Ill. App. 1971)

Expert testimony is required to prove that an architect or engineer breached his duty of care for supervising a project and his administrative activities as well as the preparation of plans and specifications. Chicago College of Osteopathic Medicine v. George A. Fuller Co. et el., 719 F. 2d 1335 (7th Cir. 1983); Peerless Ins. Co. v. Cerny & Associates, Inc., 199 F. Supp. 951 (D. Minn. 1961); Nauman v. Harold K. Beecher & Associates, 467 P. 2d 610 (Utah 1970)

A surveyor was held liable to third party purchasers of real estate (with whom he did not have a contract) for negligently misrepresenting the boundaries for the real estate. The purchasers were permitted to recover the damages resulting from the inaccurate survey, even though there was no privity of contract between them and the surveyor. This is an exception (negligent misrepresentation and fraudulent misrepresentation) to the “Economic Loss” Doctrine which precludes recovery of “contract type” damages under tort theories where there was no cataclysmic occurrence, property damage or physical injury. Rozny v. Marnul, 43 Ill. 2d 54, 250 N.E. 2d 656 (Ill. 1969)

A surety may recover for damages caused by an architect’s negligence in failing to properly supervise construction, notwithstanding the lack of privity between the surety and the architect. The surety was required to pay for the defective and incomplete work of its bonded contractor. Upon payment to the owner, it was subrogated to the owner’s claims against the engineer/architect. Aetna Insurance Co. v. Hellmuth, Obata & Kassabaum, (H.O.K.), 392 F. 2d 472 (8th Cir. 1968)

An architect may be liable to an injured workman for negligently requiring sufficient steel scaffolding to support a roof during removal of a proscenium truss, where the architect contractually agreed with the owner to perform supervisory duties on the project. Miller v. DeWitt, 37 Ill. 2d 273, 226 N.E. 2d 630 (Ill. 1967)

An indemnitor of the prime contractor’s surety also has the right to recover from the architect for negligently certifying overpayment to the bonded contractor through its rights of subrogation to the surety’s position which is subrogated to the owner’s rights against the architect. Westerhold v. Carroll, 419 S.W. 2d 73 (Mo. 1967)

The contractors acceptance of final payment amounted to an accord and satisfaction, preventing the contractor from suing the city, owner and the engineer who allegedly negligently created a delay damaging the contractor. Cox v. City of Freeman, Mo., 321 F. 2d 887 (8th Cir. 1963)

An architect owes a duty of due care to the owner, and through the owner to the contractor’s surety, with respect to his contractual obligations to certify the contractor’s applications for progress payments. The owner and the surety may recover for the architect’s negligence in certifying excessive payments to the contractor. State f/u/o National Surety Corp. v. Malvaney, 72 So. 2d 424 (Miss. 1954)

An architect may be held liable to the owner, and through the owner to its surety, for certifying for payment monthly “estimates” of the contractor, instead of approving payment for the work actually performed. Overpayment to the contractor occurred, the contractor defaulted and the contractor’s surety was required to complete the project at its cost since the remaining contract balance was insufficient to pay for the remaining, incomplete, work. Hall v. Union Indemnity Co., 61 F. 2d 85 (8th Cir. 1932)

A Missouri Statute immunizes design professionals from liability for failure to comply with safety standards on a construction project for claims covered by the Workers’ Compensation Act, unless responsibility for safety practices is specifically assumed by the contract of the design professional. R.S.Mo. § 287.150.5

In Missouri, tort actions against architects, engineers and builders of allegedly defective improvements to real property must be brought within 10 years of completion of the improvement, irrespective of the date of discovery of the alleged damages. R.S.Mo. § 516.097.

Actions against engineers for alleged negligence or alleged breach of contract and resulting damages, must be brought within 5 years from the date of discovery. R.S.Mo. § 516.120.