In Bonilla v. Verges Rome Architects, 2023-00928 (La. 3/22/24); 382 So.3d 62, the Louisiana Supreme Court held because the terms of the agreement between the architect and the public owner did not give the architect responsibility for the means and methods of construction or for safety on the project, the architect did not have a duty to safeguard third parties against injury, regardless of whether the architect may have had knowledge of dangerous conditions on the project.
In Bonilla, the City of New Orleans entered into a contract for the renovation of a building owned by the city. The city also entered into an agreement with Verges Rome Architects (“VRA”) to serve as the project architect. The general contractor on the project subcontracted the demolition work to Meza Services, Inc. (“Meza”).
An employee of Meza was injured while attempting to demolish a “vault” on the project. The vault was a ten-foot by ten-foot cinderblock room with a nine-foot-high concrete slab ceiling located on the second floor of the building. The walls of the vault had been partially demolished when one of the employees of Meza was directed by his supervisor to stand on the ceiling of the vault with a jackhammer to continue the demolition. Shortly after beginning the task, the vault structure collapsed and caused the employee to suffer significant injury.
The employee filed suit against VRA alleging negligence in the preparation of the plans and specifications, failure to design and/or require support of the area being demolished, and the failure to monitor and supervise the execution of the plans to ensure jobsite safety. VRA filed a motion for summary judgment, arguing that pursuant to the relevant contracts, it had no obligation to supervise or inspect the work of the general contractor or any of its subcontractors and was not responsible for safety at the site.
In opposition to summary judgment, the plaintiff noted that the contract between the city and VRA required the architect to make on-site observations, keep the owner informed of the progress of the work, and report known deviations from the contract documents. Plaintiff also offered the deposition testimony of one of the architects with VRA who acknowledged that one of his duties was to periodically visit the jobsite to observe the progress of the work and “make sure that it's being performed in accordance with the design intent and the drawings.”
In his deposition testimony, the architect acknowledged that the project manual required the contractor to provide temporary support when cutting and patching. The architect also identified a photograph which he took on the day of the plaintiff’s accident, but before the accident occurred, which showed the vault with much of the side wall and a portion of the front wall demolished. The architect acknowledged in his deposition that there were no temporary supports in place on the vault at the time he took the photographs.
The plaintiff also offered the testimony of an expert witness who testified that it should have been obvious to anyone that partially removing the walls without providing supports made the ceiling of the vault unstable, and it should also have been obvious that it was more dangerous to jackhammer on the ceiling slab after removing part of two of its support walls.
The trial court granted summary judgment in favor of VRA. The intermediate court of appeals reversed the grant of summary judgment.
The court of appeals noted that the issue on appeal was whether the express provisions of the relevant contracts imposed a duty on VRA and whether VRA breached the duty. The court of appeals acknowledged that the relevant contracts provided that the contractor, and not the architect, was responsible for the means and methods of construction and for safety. However, VRA had a contractual duty to make site visits to ensure the contractor was operating in accordance with the plans and to report any deviations from the plans.
The court of appeals found that there was an issue of material fact as to whether VRA was aware of the contractor’s deviation for the contract requirements and whether VRA failed to identify and report an unsafe condition. As a result, the court found there were genuine issues of material fact as to whether VRA breached a duty to the plaintiff and reversed the trial court’s grant of summary judgment in favor of VRA.
The Louisiana Supreme Court reversed the court of appeals. The Louisiana Supreme Court held that the duty owed to an employee of a contractor by an engineer or architect is determined by the express provisions of the contract between the architect and owner. “The mere fact that an engineer or architect was involved in the construction process and had contractual duties to an owner does not create an all-encompassing duty to protect everyone from every risk which could be encountered during the course of the project.”
The Supreme Court observed that the contract between VRA and the owner required VRA to make weekly site visits, but the purpose of those site visits was to ensure the owner secured the building for which it had contracted and that the work was progressing according to the specifications. The Supreme Court also noted that the VRA’s contract specified that VRA was not responsible for the construction means and methods, or safety precautions or programs. The Supreme Court went on to hold that VRA therefore could not be held liable for failing to perform duties that it had no responsibility or authority to undertake.
The opinion of the Louisiana Supreme Court in Bonilla, by focusing solely on the contract language and not addressing or considering the issue of whether VRA had actual knowledge of a dangerous site hazard, strongly suggests that the court declined to adopt an actual notice exception to the general rule that the duty owed by an engineer or architect is determined by the express provisions of the contract between the architect and owner. Earlier cases from an intermediate court of appeals suggested that there could be a duty in tort on the part of an architect or engineer if they observed an unreasonably dangerous condition and failed to do anything about it. Bonilla appears to resolve that question.
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Author and Editor Stu Richeson is an attorney in the litigation section of Phelps Dunbar’s New Orleans office, primarily focusing on commercial litigation with an emphasis on construction matters, intellectual property issues and insurance.
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