CONSTRUCTION CONSULTANTS, BE WARE (March 2025)

A “heads-up” for construction consultants: you can be liable to people with whom you have no contract.  A decade ago, the California Supreme Court held that architects owe a duty of care and can be liable to future property owners, even though the architect had a contract with the initial owner only, departing from the previous principle that architects owed a duty only to the owner with whom there was privity of contract.  The California Court of Appeal has extended this principle (i.e., not requiring privity of contract for imposing a duty and liability) to a soils engineer.  In Lynch v. Peters & Associates, the soils engineer contracted with the general contractor, and not the owner, to perform a geotechnical inspection of an excavated footing trench for a home remodeling project.  The engineer concluded that the trench was geotechnically acceptable and suitable for the intended use, clearing the way for the contractor to pour the footing.  Unfortunately, the soil proved inadequate, and the footing collapsed, causing the structure to subside and move laterally.  The Court of Appeal held that even though the engineer’s contract was with the general contractor and not the owner, the soils engineer owed a duty of care and could be liable to the owner, essentially because “the transaction was most definitely intended to affect the [owners], and the harm to them if the job was not correctly done was certainly foreseeable.”  This case potentially expands the liability of all construction consultants.