The Design and Construction Management Professional Reporter: March 2005

Inside this Issue

Geotechnical Engineer is Found Liable Under Product Liability Theory

A court decision has recently come out of the Georgia Court of Appeals with potentially significant ramifications to the geotechnical engineering profession. Among other things, in Tensar Earth Technologies, Inc. v. City of Atlanta, 267 GA. App. 45, 598 S.E. 2d 815 (2004), the court found that a geotechnical engineer could be liable under a products liability theory.

Design Builder May Not Ignore Essential Design Features Contained in Owner’s Design Requirements

In a recent decision, Sea Crest Construction Corp. v. United States of America, 59 Fed. Cl. 615., the United States Court of Federal Claims determined that a design-builder could not unilaterally choose to ignore essential design features that an Owner specified in its contract requirements.

Massachusetts Superior Court Enforces Contractor’s Covenant Not to Sue Architect in Public Bid Contract

In Castagna Construction Corp. v. Town of Brookline, No. 02-818-A (October 5, 2004) (“Castagna”) (Whitehead, J.), the Essex County (Massachusetts) Superior Court recently upheld a covenant not to sue the architect in connection with a public bid school construction project, granting an architect’s (“the Architect”) summary judgment motion against the contractor plaintiff. Donovan Hatem LLP represented the Architect in the lawsuit.

Tort Claims Precluded by Economic Loss Rule Despite Duties Established in Interrelated Contracts

In a recent decision, the Colorado Supreme Court held that Colorado’s economic loss rule barred a subcontractor’s tort claims that were based on duties set forth in interrelated contracts. The decision is significant in that it runs against the trend of courts across the country to erode the rule.

Illinois Court Holds that Contract Language Insulates Defendant form Liability in Action for Professional Negligence

A recent, not yet published, decision from an Illinois appellate court held that in an action for professional negligence, a defendant’s duty will not extend beyond that described in the contract for professional services. In Browning v. Eckland Consultants, Inc., the appellate court affirmed the circuit court’s dismissal of plaintiff’s claims for breach of contract, negligent misrepresentation and professional negligence against defendant Eckland Consultants, Inc. plaintiff for value.

Michigan Court Interprets Statute Establishing Time Periods to Bring Suits Against Architects as Both Statute of Limitations and Statute of Repose

The Court of Appeals of Michigan has determined that a six-year statute of limitations applies to negligence claims brought against architects and engineers as opposed to the two-year statute of limitations for professional malpractice. The appellate court determined that the trial court erred in granting summary disposition to a defendant architect because the plaintiffs’ claim was brought after the expiration of the two-year malpractice statute of limitations. The plaintiffs appealed and argued that the specific six-year statute of repose applicable to professional negligence claims arising from personal injury or property damage against architects, engineers and contractors applies and, therefore, plaintiffs’ claim was not time-barred.

Court Finds that Contractor Who Properly Follows Plans and Specifications is Not Liable for Injuries

In a recent decision, the Rhode Island Supreme Court held that “a contractor who builds in accordance with the plans and specifications provided by an architect or engineer and . . . in reliance on a valid building permit, and who thereafter turns over the work product to the owner should not be held liable to third parties for personal injury allegedly caused by the structure or instrumentality unless the plans are so obviously dangerous that no competent contractor would follow them.”

Pennsylvania Restricts Economic Loss Rule as a Defense to Contractor Claim Against Architects

In a recent decision of great significance in Pennsylvania, and perhaps beyond, Bilt-Rite Contractors, Inc. v. The Architectural Studio, 2005 Pa. LEXIS 99 (2005), the Supreme Court of Pennsylvania (the “Supreme Court”) held that a contractor can maintain a tort action for purely economic damages against an architect despite lack of contractual privity. The decision to a great degree eliminates the economic loss rule as a defense for architects against contractor claims.

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