Construction Administration Duties

[slyford@sbcglobal.net]

In representing architects in litigation, I am repeatedly confronted with the concept of the architect as "inspector" of the contractor's work. No matter what the defect, the idea is that the architect should have discovered it. The standard AIA language about "endeavoring to protect the Owner" against defects in the quantity and quality of the work is not helpful and doesn't really tell a lay person anything about what the architect is supposed to do. I have a particularly nasty personal injury case right now in which an architect is being blamed for not having discovered that the contractor did not build a residential balcony according to the plans. Is anyone aware of any good texts or literature that I could use in cross-examing the plaintiff's expert about the proper role of the architect in such a project, or do you have any good ideas about how to articulate that role, perhaps by analogy, in such a way that a jury would stand a chance of "getting" it? This was done under the standard AIA B151-1997. I'd appreciate any thoughts - and so would my client. Thanks.

[RWL]

Justin Sweet's book LEGAL ASPECTS OF ARCHITECTURE AND ENGINEERING [?], might be of help.

Also contact Tom Kelleher at Smith, Currie & Hancock, LLP in Atlanta, since they do a good deal of construction litigation.

You might also want to look into the AIA Document A-201, The General Conditions of the Contract, to ascertain the direction and depth of the Architect's responsibilities. As I recall A151 references the A-201 document.

[slyford@sbcglobal.net]

Ralph - thanks - I'll take a look at the Sweet's text to see if there's anything there that will help. The A201 is part of the B151 by reference, but it doesn't really help much, either. The language is so general that it can be argued to mean that the architect has a duty to find defects to protect the owner. The only case in Texas that's dealt with the "not responsible for the contractor's failure to construct according to the plans and specifications" language was in the context of a fight between an owner and architect. The Court said that all that language meant was that the architect was not a guarantor of the contractor's work - but that the architect still had a duty "to endeavor to protect . " - whatever that means! The question is always very specific, and always using 20-20 hindsight - should the architect have noticed that "x" was not being done properly. That easily morphs into a question of "could" the architect have seen the defect - and, obviously (?), if he could have, then he "should" have. With the language about "quality" in the A201, its very difficult to make a lay person understand that an architect is not there to oversee, inspect, or otherwise make sure that the contractor does it correctly. Its a problem in almost every case I have, and I'm struggling with finding (and haven't really found) a good analogy that will make a jury nod its collective head and say "oh yeah, that makes sense." Maybe there's not one out there - but my thought in posting was to get as much input from different sources as I could about the issue. I appreciate your reply.

[Donald]

If the architect's firm was retained by contract to perform specific "inspection" services to determine that the construction conformed to the plans and specifications, you may not have much of a case....but I surmise that the firm was not engaged in the actual construction inspection work inasmuch as its activities did not include the responsibility for physical trade labor and the inspection of it.

There was a past Skidmore case ruling in their favor, which held that an employer must perform actual construction work, or exercise substantial supervision over actual construction to come within the building standards.

Unless the architecture firm had engaged in some incidental physical labor on the site, such as ordering the contractor to install something not in line with the contract documents, the firm should not be held responsible for the overall construction managerial and administrative responsibility for the project.

I would check the language in the Owner/Architect contract agreement, and the Owner / Contractor contract agreement as it most likely will contain the usual language that states that "the contractor is solely responsible for construction means and methods", and the architect's incidental construction-realted functions do not amount to control of the construction by the contractor.

Also check with the architect's insurance provider. Victor O Schinnerer has a good web site for "Risk Management" at: www.PlanetAEC.com
check out the risk management button, and you might find some good information in there. If he's a member, you can find more with his ISN number.

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