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Sample Case Study Paper on the Architect, the Engineer and a Breach of Duty

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Sample Case Study Paper on the Architect, the Engineer and a Breach of Duty

In the contract between the municipality and the architect, there are expectations from each of the contract parties. Failure to adhere to the contract expectations or to perform at a satisfactory level may constitute a tort offence which subjects the offender to certain liabilities. In the outlined case, there are two existent contracts. The first contract is between the Municipality and the architect while the second is between the architect and the engineering firm. The engineer is a third party to this second contract and is therefore not party to any of the resultant liabilities.

Tort law operates based on certain principles outlined by Mann and Roberts (2011). According to business law, an action may be considered as negligence under tort law on fulfillment of certain conditions. First, there has to exist a duty of care between the perpetrator and the victim of the action. Considering the case of the architect, this duty existed from the moment the contractor undertook to design and construct the property. The architect should have taken responsibility for protecting both the client and the building from physical damage. By failing to inform the Municipality about the need for deeper soil testing, the architect breached this duty of care, which is the second condition for consideration in tort law application. The breach of duty by the architect can be effectively concluded to have been the factual cause of the physical harm caused. The factual cause outlook however poses a challenge in consideration due to the facts presented. While we are informed that the engineer reported to the architect about the need for deeper soil testing, it is not clear whether the architect was aware of the potential harm that failure to carry out those tests could cause. It is thus essential for a deeper outlook to be taken.

Based on a superficial analysis of the case, it may be concluded that the architect is potentially liable for causing physical harm to the client by tort law through negligence. This conclusion is based on the details describing the case. Physical harm is described in tort law as inclusive of personal injury or property damage. The fast settlement of the constructed building can also be considered as property damage since it is an impairment of the constructed real estate property. The perpetrator of any action that results in real estate impairment is considered as a tort feasor by tort law and is therefore held liable for physical damage to the property (Wheatley, 2012). On the other hand, a deep outlook into the case brings out facts that may indemnify the architect from this liability.

The duty of care in tort law is linked to the foresee ability of the harm that can be caused by a breach of that duty. In this case, while the engineer may have been aware that failure to carry out deeper soil tests can result in the collapse of buildings or may eventually lead to the building being rendered useless for its intended purpose (Gutti, 2015), it is not clear whether the architect was also privy to this information. As such, the architect may not have foreseen the possible implications of not informing the municipality of the need for such tests. Failure to understand the gravity of the potential harm may have prevented the architect from taking the necessary precautions in preventing this harm. This outlook may exempt the architect from liability for physical harm under tort law. It is thus important to ascertain the actual facts which were held by the architect prior to continuing with the design.

In case it is confirmed that the architect was aware of the severity of the potential harm that would result due to his breach of duty, the architect will be held liable for physical harm through property impairment. It is clearly stated in the contract law that any party to contract is responsible for carrying out diligent and skilled work with faithfulness and expedience in performing the contract obligations. The architect’s failure thus compounds into a breach of contract which results into liability for physical harm (Beirne, Maynard and Parsons LLP., 2007).

In a case of Gould V. Moniken, the plaintiff, a nurse, was injured while in the course of duty, by a patient, Mr. Moniken who was well known to be of unsound mind and al Alzheimer patient. The court of Appeal concluded that the defendant was innocent of the tort since he could not control his actions while the complainant was not completely innocent as she knew the potential dangers of her work (Donaldson, 1999). She was thus awarded compensation for work related injury. This case may be similar in some respect to the case of study. However, the point of divergence is that while Ms. Gould was considered “not innocent” in this case, the Municipality is entirely innocent of the injury caused; the innocence of the architect is also a point of question. It is therefore essential for the architect or any party considering entering a construction contract to create an agreement that clearly outlines the scope of each party’s responsibilities with regards to the contract.

General Construction Contract Agreement between the Municipality and the Architect for the Construction of a Police Station
24th March 2016

Agreement between the Municipality; hereafter referred to as the Client (First Party to agreement)

And

The Architect; hereafter referred to as the architect (Second Party to agreement)

As Pertains: the Construction of a Police Station

General Conditions
  • Documents Ownership

All documents prepared for application in the present project belong to the architect on copyright basis. This includes all drawings, quotations, specifications and report. The client however has the right to use any of the documents within the scope of the project of contract. The architect may also publish any of the documents after obtaining permission from the client.

  • Patents

All patentable processes, concepts or product that arise from rendering the services associated with the contract belong to the engineer and may be used by the client on a non- exclusive basis free of royalty charges for no purpose other than related to the project in question.

  • Confidential Information

Both the client and the architect hold the responsibility of keeping all confidential information with respect to the project. The engineer however has the responsibility of divulging such information where there is urgent need to so as in situations where the safety and well being of the public is compromised. The divulgence is subjected to client’s approval hence notice must be given beforehand.

  • Insurance and Liability

In lieu of this project’s risks, the architect undertakes liability for any potential damage not directly linked to the project or unforeseen in the events of the project completion. However, the following insurance covers will apply throughout the project work.

  • Automobile and machinery insurance

All vehicles and other heavy machinery to be used during the project are under damage, and accident cover.

  • Professional Liability

The architect is obliged to act in accordance with professional code of conduct and will be held liable for any act that results in physical damage either to the property constructed or to persons in physical proximity to the property. This liability includes harm that results due to failure to disclose information.

  • Personal injury liability and insurance

All persons contracted by the architect are subcontractors for the project and are covered for personal work related injury. However, where such injury is a result of individual negligence, the victims will be held liable for their injury.

  • Change of insurance cover

The architect is under the obligation not to change insurance covers unless such change is mandatory. In this case, the client has to be informed of the factors leading to the change at least 60 days before the change is in effect.

  • Fee Mediation and calculations

All fees will be calculated after the determination of actual construction costs and as a percentage of the costs. The calculations will then be used as a basis for fee mediations based on the professional body blue prints for the payment of architects. The mode of payment of the fee will be agreed upon during the mediation process and will then be written and kept as a subsidiary to this agreement.

  • Additional services

Services other than those within the scope of the present project will be considered as additional services and the client will be charged separately depending on the agreement made with the architect at the point of request.

  • Disclosure

The architect undertakes to disclose all information related to the project to the client without presumptions.

  • Termination and/ or suspension

Either of the parties has the right to terminate the contract based on the other party’s failure to perform in line with the contract obligations. This is however subject to providing a written 30 days notice of the same. The client additionally has the right to suspend the architect based on other factors such as financial constraints or in case of other issues that need resolving prior to project continuation.

Entire Agreement

This agreement on general contract conditions is a precedent to the all inclusive agreement which will be entered into after the contract confirmation. It is therefore devoid of sections such as the client and architect responsibilities, payment details, project timeline and costs which will become relevant only after the signing of the present agreement and full disclosure of other project details.

 

Completed, Sealed and Delivered

Witnessed by___________________________________    Date _____________________

Architect: _____________________________________    Date _____________________

Client:  ______________________________________ _    Date _____________________

 

 

 

 

 

 

References

Beirne, Maynard and Parsons LLP. (2007). “Construction Contracts: Liability for Negligent Performance”.

Donaldson, W. P. (1999). “Innocence, Negligence, and Common Sense: Tort Liability of Mentally Impaired Persons,” Marquette Elder’s Advisor, 1(1), Article 9.

Gutti, M. (2015). “Why soil Investigation is Necessary for your Building Project”.

Mann, R. & Roberts, B. (2011). Business Law 15th Ed. Cengage Learning.

Wheatley, B. (2012).”Negligence Claims in Texas Construction cases”. Munsch Hardt Kopf & Harr PC. 

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