The Professional Liability of Architects and Engineers

Question 1

Who can bring suit for liability against a DP?

Answer 1

contractor, owner, third-party claims

Question 2

What claims can the owner bring against a DP?

Answer 2

1. Breach of Contract
2. Third-Party Beneficiary (Owner v. Sub-Consultant)
3. Negligence
4. Breach of Warranty
5. Deceptive Trade Practices Act

Question 3

Breach of Contract

Answer 3

remedies: typically permit the prevailing party to seek attorney’s fees.

The elements of breach of contract are:

(1) There is a valid, enforceable contract;
(2) The plaintiff has standing to sue for breach on contract;
(3) The plaintiff performed, tendered performance, or was excused from performing its contractual obligations;
(4) The defendant breached the contract; and
(5) The defendant’s breach caused damages to the Plaintiff.

Common defenses in construction defect litigation are limitations, failure of consideration, statute of frauds, failure to perform conditions precedent, impossibility of performance, accord and satisfaction, ratification, waiver, failure to mitigate damages, limitation of liability, estoppel and prior breach.

Question 4

An express contract does NOT bar recovery in quantum meruit:

Answer 4

(1) when the plaintiff has partially performed the contract, but because of the defendant’s breach, the plaintiff is prevented from completing the contract
(2) under certain circumstances, when the plaintiff partially performs an express, unilateral contract; and
(3) when a contractor under a construction contract breaches the contract and the owner accepts and retains the benefits arising as a direct result of the contractor’s partial performance of the contract.

Question 5

Breach of Warranty

Answer 5

A warranty can generally be described as an agreement that accompanies the sale or lease of goods and services by which the seller undertakes to vouch for the condition or quality of the goods sold or leased or the services provided. A warranty is an independent promise apart from the contractual obligations of the lease or sale contract. Warranties are created by statute or by common law.

Common defenses are limitations, disclaimer, proportionate responsibility, lack of notice, no opportunity to cure, limitation of damages, failure to mitigate, and RCLA.

Question 6

The American Institute of Architects (“AIA”) contract documents for construction contemplate an express warranty of __ year.

Answer 6

one

Question 7

On residential projects, an express warranty may be contained in the _____ and/or in an agreement from a ____.

Answer 7

the construction contract

third party warranty company

Question 8

implied warranties that are relevant to construction law

Answer 8

1. the Implied Warranty of Good and Workmanlike Performance in Service Contracts
2. the Implied Warranty of Good and Workmanlike Performance and Habitability in the Sale of a Home.

Question 9

Implied Warranty of Good and Workmanlike Performance in Service Contracts

Answer 9

any contract for a service gives rise to a warranty that the service will be performed in a good and workmanlike manner.
For services, Texas recognizes the common law warranty of good and workmanlike performance of services as it applies to the repair or modification of existing tangible goods or property.
*this warranty can be waived in some circumstances

Question 10

Implied Warranty of Good and Workmanlike Performance and Habitability in the Sale of a Home.

Answer 10

asserts that when a home is sold, the seller gives the buyer an implied warranty that the home was constructed in a good and workmanlike manner and it is habitable.
*the warranty of habitability may not be waived

Question 11

the warranty of habitability imposes strict liability on the developer/contractor, which essentially means that the owner of the building does not need to prove negligence. However, the owner will still need to prove that:

Answer 11

-a defect exists
-that there are damages as a result of the defect
and
- that the developer/contractor proximately caused the defect.

Question 12

Negligence is

Answer 12

the failure to exercise the ordinary care of a reasonably prudent person

Question 13

Under a negligence theory, a plaintiff is required to establish three elements:

Answer 13

(1) The defendant owed a legal duty to the plaintiff;
(2) The defendant breached the duty; and
(3) The breach proximately caused the plaintiff’s injury.

Question 14

Common Defenses for Negligence

Answer 14

limitations, contributory negligence, release, assumption of risk, and the economic loss rule