In Black + Vernooy Architects v. Smith, 346 S.W.3d 877 (Tex. App.--Austin 2011, pet. denied), the Austin Court of Appeals held that a design firm owed no duty to a third party. In that case, the plaintiff sued the architect and other parties after a balcony collapsed off a home, causing the plaintiff to suffer catastrophic injuries. The contractor who installed the balcony committed several critical errors – and failed to follow the architect’s design. The plaintiff, who was a guest of the homeowner, alleged that the architect was negligent because he failed to identify and report the contractor’s mistakes in the construction of the home. There was no question that the construction of the balcony failed to comply with the architect’s design. In fact, the architect admitted that the faulty construction was obvious and should have been reported to the homeowner.

One of the questions presented to the Austin court was whether the architect owed a duty to the homeowners’ guest, a third person who did not have a contract with the architect, as opposed to the homeowners themselves. The Austin court held the architect had no independent duty to protect the homeowners’ guests from the negligent acts of the contractors who negligently constructed the balcony. The court extensively analyzed the homeowner’s contracts with the architect and the contractor. The Austin court found that the architect had agreed to perform “contract administration services” during construction, to report “known deviations from the Contract Documents” and “to endeavor to guard the [homeowners] against defects and deficiencies in the Work.” These contractual duties, however, did not extend to the homeowners’ guests.

Perhaps more importantly, the agreement between the architect and the homeowner contained important limitations on the architect’s agreed scope of services. Specifically, the agreement provided that the Architect “shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work.” Instead, the agreement explained that those obligations “are solely the Contractor’s rights and responsibilities.”

The plaintiff petitioned the Texas Supreme Court to review and overturn the Austin court’s decision. On March 22, 2013, after a motion for reconsideration, the Texas Supreme Court denied the petition for review, thus ending the plaintiff’s appeal. The Texas Supreme Court’s denial of the appeal thus strengthens the Austin court’s holding throughout the State of Texas.

“The Black + Vernooy decision is important for design professionals and owners alike,” said Andy Keetch, leader of Cantey Hanger’s Construction law Practice Group. “It underscores again the fact that under Texas law, a design professional’s liability is limited by his or her contracted scope of services.”

The parties to a design contract sometimes overlook the need for carefully crafted, explicit descriptions of the design professional’s scope of work. Parties must carefully consider contract language so that they do not voluntarily undertake obligations beyond what they intend and so the owner receives the services expected.