Property Owners: Confirm That Your Design Professionals Are Responsible

October 10, 2011

As part of most custom home or commercial development projects, design professionals are typically retained from the concept stage through job completion. Design professionals include licensed architects, structural engineers, geologists, geological engineers, electrical engineers, mechanical engineers and civil engineers. Often a property owner will ask a contractor or subcontractors to retain various design professionals for the project.

Property owners may be interested to know that sometimes a design professional, who is hired by a contractor or subcontractor, does not have responsibility to the property owner if a mistake is made that results in damage to the property. The following case illustrates this situation.

In a 2004 Calif. Appellate court case, Weseloh Family Limited Partnership versus K.L. Wessel Construction Company, the Weselohs, who owned the property, contracted with Wessel Construction to build an automobile dealership facility. Sierra Pacific was a subcontractor hired by Wessel, who built retaining walls for the project. Randle, a design engineer, “performed consulting work on the project for Sierra” and “supervised the work of the design engineers that worked on the project at all times.”

Randle was employed by Owen Engineering Company. Neither Randle nor Owen Engineering ever contracted with the Weseloh family or Wessel Construction to build the retaining walls or to prepare any design, engineering, planning or review of the construction. There also was no contract in place in regard to grading, manufacturing or installation at the job site. Furthermore, Randle and his company Owen Engineering had no role in the construction of the retaining walls. At Sierra Pacific’s request, both Randle and Owen Engineering representatives inspected the retaining walls. Following completion of the construction, a portion of the retaining walls failed.

Randle and Owen filed motions for summary judgment in a counter suit on the grounds that they could not be held liable for negligence because, since Randle and Owen had no contractual relationship with the Weseloh plaintiffs or Wessel, there was no basis to recognize a ”duty of care.”

The court of appeals considered whether Randle and Owen owed a duty to the property owner or general contractor. In analyzing that duty, the court of appeal gave the “foreseeable” factor limited weight even though the court acknowledged that “it is generally foreseeable that a design defect could result in the failure of a retaining wall.” The court considered other factors related to duty and determined that Randle and Owen owed no duty to either the Weseloh plaintiffs or Wessel Construction. Therefore, all of the claims were dismissed.

This case illustrates how important it is for property owners to make sure that they have contracts in place with all designers. Because both the Weseloh family and their contractor did not contract with the design professional, Randle did not owe a duty to the property owner even though he knew that he was performing services for the property and any failure could damage the property owners.

To avoid this pitfall, make sure you, as the property owner together with your general contractor, become parties to all of the agreements with any and all design professionals, so that there can be no dispute if something goes wrong.

Glen Van Dyke and his firm, Van Dyke Law Group has offices in Truckee, Eldorado Hills, San Francisco and Las Vegas. He has represented thousands of residential and commercial property owners and homeowners’ associations in the resolution of disputes over the construction of their homes or buildings. Property owners who have questions about possible legal issues concerning licensed contractors and designers in both California and Nevada can call 877-868-7013 or visit www.vandykelawgroup.com for more information.

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