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Duty Arising From the Architect’s Control Over a Construction Project

Ohio Courts have allowed recovery by a third party against a design professional absent privity of contract when a Plaintiff demonstrates a “sufficient nexus as a substitute for privity.”  With respect to contractors or sub-contractors, such a nexus exists when the design professional exercises “excessive control over the contractor through the power to stop the work and give orders about the project.”[1] The “control approach” may be a developing trend as the degree of control was referenced in the recent Texas and New York opinions discussed above. In the Texas case, Vernooy, the contractual language required the architect to report “known deviations from the Contract Documents” and to “endeavor to guard the [homeowner] against defects and deficiencies in the Work”. Nothing in the contract, however, gave the architect control over the work performed by others, which the Court considered in declining to extend the duty to contractual strangers. The Court in Fried did not rely on contractual language to determine the extent of control, but instead examined the testimony regarding the roles of design professional in determining that it sufficient control was exercised to establish liability.

[1] J & H Reinforcing & Structural Erectors, Inc. v. Wellston City Sch. Dist., 2010-Ohio-2312, ¶ 34 (Ohio Ct. App. 2010).

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