In the recent case of Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 572, the California Supreme Court held that an architect owes a duty of care to homeowners where the architect is a principal architect on the project. A Principal Architect is one who is not subordinate to any other design professional-even if the architect does not actually build the project or exercise ultimate control over construction decisions.
In the Beacon Residential case, a condominium association sued numerous entities involved in design and construction of the development, including two architecture firms, who allegedly provided design services and "played an active role throughout the construction process." There was no privity of contract [i.e., direct contractual relationship] between the homeowners and the design professionals; on this basis the design professionals claimed that they owed no duty to the plaintiff homeowners. [Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 572].
The Complaint asserted causes of action for violation of SB800 [Cal. Civ. Code, § 895, et seq. (commonly referred to as the "Right to Repair Act")], negligence per se, and professional negligence. The trial court sustained the design professionals' demurrer without leave to amend based upon lack of duty. The homeowners appealed and the appellate court reversed the trial court ruling, finding the design professionals owed a duty of care based on an analysis of Biakanja v. Irving (1958) 49 Cal.2d 647 and public policy underlying the Right to Repair Act. The ruling was appealed to the California Supreme Court, which affirmed the appellate court's decision.
In determining whether a duty of care existed between the homeowners and the design professionals, where no privity exists, the Supreme Court applied the "Biakanja factors" to the facts of the Beacon Residential case:
[Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP, supra, 59 Cal.4th 568, 586 [173 Cal.Rptr.3d 752, 765-766].
Finding all six Biakanja factors favored finding a duty existed, the Supreme Court held:
An architect owes a duty of care to future homeowners where the architect is a principal architect on the project-that is, the architect, in providing professional design services, is not subordinate to any other design professional-even if the architect does not actually build the project or exercise ultimate control over construction decisions. [Id. at 581 (emphasis in original)].
What does this mean to the design professional?
It is important to distinguish between principal and subordinate design professionals in assessing potential liability. A design professional owes a duty of care to homeowners (and future homeowners) where he or she is the principal design professional on the project, e.g. where he provides services directly to the owner and/or provides construction support. However, no duty of care is owed by the subordinate design professional (such as the consulting engineer in the case of Weseloh Family Ltd. Partnership v. K.L. Wessel Const. Co. (2004) 125 Cal.App.4th 152).
In light of the decision in Beacon Residential, we anticipate that it will be more difficult in the future to extricate principal design professionals from lawsuits at the demurrer/pleading stage or even via summary judgment motions. Indeed, the Supreme Court's decision in Beacon creates considerable obstacles for design professionals and their counsel to overcome, making favorable contractual indemnity provisions more important than ever.
Chester Walls is a licensed civil engineer and an attorney in the Fresno office. He can be reached at or 559.449.2600.