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Case Illustration

A design professional provided plans and specifications for a commercial development. The project plans called for significant cut and fill work, the maximum thickness of lifts of fill, compaction levels of fill material, and compaction testing of fill at defined intervals. The contract documents did not use AIA form contracts, but did describe the design professional’s duties during construction. The design professional contracted for no construction contract administration other than certifying pay requests based on observations of the work in place. The design professional made periodic site visits to observe quantities and work in place.

As the earth-moving work progressed, the design professional made periodic site visits to observe the contractor’s progress placing the fill. A geotechnical engineering firm tested the compaction density of each lift of fill and documented the results on a report. Each report—which listed multiple compaction tests—identified the location of each of the tests and the compaction density of the fill material placed by the contractor. The geotechnical engineer copied the design professional on its soil-compaction test reports to the owner. Without exception, the reports demonstrated that the contractor achieved adequate compaction at each test site. The design professional barely reviewed the compaction reports as they came in (if at all) and routed them to the project file.

A year after the project was finished, the owner began to notice cracks in the structures built on the site. Soil settlement was to blame. Predictably, the owner sued all involved, including the earth-moving contractor, the geotechnical engineer, and the design professional. Although the compaction testing reports showed adequate compaction, the owner alleged (1) the contractor placed the fill in lifts that were too thick, causing the compaction tests to be unreliable, and (2) the number of compaction tests listed on the reports demonstrated that the tests were not performed with the frequency required in the plans and specifications. The owner alleged that the architect was negligent because he received a copy of all of the compaction test reports, possessed the expertise to know that there were not enough tests for the area described on the report, and failed to notify the owner of the insufficient testing.

The parties resolved the case before the court decided whether the architect assumed or otherwise owed a duty to the owner to review the geotechnical engineer’s reports when it agreed to observe the work. The architect could have avoided years of the time and expense of litigation with better communication, better contracting, or both. The design professional could have replied to one of the early reports with a statement to the owner that he would be happy to review the geotechnical engineer’s reports for an agreed-upon price if the owner wished. Alternatively, the contract could have been more specific define the design professional’s duties. The contract could limit observations of the work in place to those observations made at the project site and specifically exclude review of administrative reports

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