The following case study shows the importance of a well-drafted professional services agreement that clearly delineates a firm’s scope of services and explicitly places responsibility for site safety with the contractor.
If the agreement provides for any construction phase services by the design professional, the agreement should include express language that the contractor is solely responsible for the construction site and the means, methods, techniques, sequences, and procedures used to perform the work.
Public Nuisance Case
A man claimed to be injured when he fell off a retaining wall that was constructed with no protective fencing. The wall was part of a municipal construction project designed by the defendant architect. The plaintiff filed suit against the town, contractor, and architect alleging that the wall was constructed on public land and constituted a public nuisance.
The architect filed a motion for summary judgment saying that it did not have control of the project and therefore could not be liable under a nuisance theory. The architect denied that it was required to supervise the project, be responsible for site safety, or have control over the retaining wall. The court agreed and rendered summary judgment in favor of the architect, concurring that the architect was not a user of the wall and therefore could not be liable for the public nuisance. The plaintiff appealed the decision and the appellate court affirmed the lower court’s findings.
The appellate court cited rulings from prior cases:
“A nuisance describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property. The term nuisance refers to the condition that exists and not to the act or failure to act that creates it.”
The court relied on the architect’s agreement with the town and confirmed that the architect:
- was primarily responsible for architectural and engineering services,
- did not install the wall, and
- did not have the authority to control the contractor or advise on site safety.
The court rejected the plaintiff’s claim that the architect had control over the property because it had input into the design and construction of the project and failed to include a fence in the design. Interestingly, the plaintiff failed to assert claims of professional negligence, which might have led to a different outcome in the case.