Negligent Tort Liability of the Design Professional

Design professionals such as architects and engineers (A/Es) are experiencing increased liability exposure from contractors seeking to recover construction-related damages. Legal action is usually sought based on the principles of tort law, but this area of the law may not be well understood by nonattorneys. As a result, contractors may spend precious financial resources pursuing a claim in which there is little chance of recovery. The purpose of this paper is to present in general terms the main elements of tort liability, specifically negligence. The issues described include the economic loss rule and the implications thereof. Several exceptions to the economic loss rule are described, most notably foreseeability. If a contractor can successfully navigate around the economic loss rule, the contractor must prove that the A/E owed the contractor a legal duty and that duty was breached because of A/E negligence. A/Es must follow the process that other similarly situated A/Es would have followed. Compounding a discussion of torts is the fact that the law is constantly changing and judicial attitudes vary between states (jurisdictions). On the surface, there seems to be little commonality about how A/E–contractor disputes are viewed between states except for the basics. However, one thing that does seem consistent is that a contractor seeking to recover purely economic damages from an A/E faces a formidable challenge. The paper concludes with a synopsis of several of court decisions where there were personal injuries or contractors sought recovery from an A/E for purely economic damages. All involve tort negligence. The common thread among the cases is a discussion of the foreseeability exception to the economic loss rule and the need to establish that a duty was owed in order to prevail in tort.