By Mike Koger, AIA, Esq., Senior Director and Counsel, AIA Contract Documents
February 28, 2023
If you’re an architect, one of your jobs is to coordinate your design services with the services of other consultants on a project. In many situations, you hire these consultants directly and work with them closely. But in other situations, you have to rely on the work product of consultants that you didn’t hire and didn’t pick, and whose services you have no real influence over. This is the case with consultants like surveyors and geotechnical engineers, who are typically hired directly by the owner of the project. As an architect, these consultants can present you with unique challenges and risks. This article will explore a court decision that highlights the risk an owner-hired consultant can bring to the table.[1] This case should serve as a cautionary tale for architects who rely on the services of consultants hired by an owner of a project.
The case at issue was decided by an Oklahoma federal district court in 2019. It focuses on a pair of contract provisions that are commonly found in many owner/architect agreements. This case specifically addresses a vexing issue for architects – what should you do when you receive information from an owner’s consultant that likely contains an error?
The facts of this case are complex, but this summary will set the stage. In 2011, the Tulsa Zoo hired an architect to prepare a master plan for future development and expansion of the zoo. This master plan included work to integrate new improvements with older structures over the course of a 20-year development period. While preparing the master plan, the architect obtained several pieces of information from the Tulsa Zoo about the existing conditions of the site. Included in this bundle of owner-provided information, the architect received three separate documents that showed the finished floor elevation height of an existing concession stand called the Trunk Stop. These three pieces of information included (1) the original 1995 design drawings for the Trunk Stop prepared by a company named Imel & Graber that showed the Trunk Stop elevation at 592.5’, (2) elevation certificates showing the Trunk Stop elevation also at 592.5’, and (3) a newer survey prepared by White Surveying Company showing the elevation at 595.5’. Notably, White’s survey was the newest of the three documents and showed the Trunk Stop finished floor elevations to be nearly three feet higher than the two older documents.
Upon recognizing the elevation discrepancies in the documents provided by the Tulsa Zoo, the architect reached out to a representative at the Tulsa Zoo to ask which elevations should control for the purposes of the master plan. The Tulsa Zoo representative instructed the architect to use the information on the newer White survey. Importantly, while the architect notified the Tulsa Zoo that the elevations shown on the White survey conflicted with the elevations shown on the older Imel & Graber drawings, the architect did not notify the zoo that the White survey also conflicted with the existing elevation certificates. The architect moved forward with the design of the master plan using the elevations on the White survey as the basis for designing and integrating the Trunk Stop into the surrounding improvements.
When construction began on the zoo’s expansion, an error quickly became apparent. The Trunk Stop, which appeared on the White survey to be at an elevation of 595.5’, was nearly three feet lower. This made the Trunk Stop considerably lower than the new paths and structures that were being built immediately adjacent to it. As a result, the Tulsa Zoo had to choose between making substantial revisions to the Trunk Stop to accommodate its lower finished floor height or demolish the Trunk Stop altogether and rebuild it at a higher elevation. Not wanting the Trunk Stop to be cluttered with ADA ramps and awkward views from its now sunken position, the Tulsa Zoo opted to demolish the Trunk Stop and rebuild it at a higher elevation.
In total, the Tulsa Zoo estimated that the cost to rebuild the Trunk Stop at the higher elevation was $1.4 million dollars. For its part, White settled with the Tulsa Zoo for $950,000 for providing the wrong elevations on its survey. The Tulsa Zoo then filed a lawsuit against the architect alleging that it breached its contract by (1) failing to notify the Tulsa Zoo of the inconsistency between the White survey and the elevation certificates and (2) failing to exercise due care in advising the Tulsa Zoo of the importance of the elevation inconsistencies. In making these claims, the Tulsa Zoo pointed specifically to two provisions in its contract with the architect. These provisions read as follows:
As to the alleged breach of Section 3.1.2, the Tulsa Zoo argued that was not enough for the architect to inform it that the White survey’s measurements were inconsistent with the 1995 Imel & Graber drawings. According to the Tulsa Zoo, the architect also had an obligation to notify it that the White survey was also inconsistent with the elevation certificates. Moreover, the Tulsa Zoo argued that the architect also breached Section 2.2 by not explaining the importance of the elevation inconsistencies and, presumably, encouraging further scrutiny as to why the White survey conflicted with both prior documents.
Naturally, the architect disagreed with the Tulsa Zoo on these claims. The architect filed a motion for summary judgment arguing that it had satisfied its contractual and professional obligations to the Tulsa Zoo. The architect argued that it had notified the Tulsa Zoo that the White survey was inconsistent with at least one of the prior documents that showed the Trunk Stop elevations. The architect had even asked a representative of the Tulsa Zoo which elevations it should use, and the Tulsa Zoo affirmatively pointed to the White survey as being the controlling document. Moreover, the architect argued that it was not a professional surveyor and had no expertise in surveying that would lend it to identifying and resolving errors in the White survey. The architect further argued that it did not hire the surveyor and it had no control over surveyor’s services. The architect also argued that, under Section 3.1.2 of its contract, it had a right to rely on information provided to it by the Tulsa Zoo, which included the White survey.
The federal district court ultimately ruled against the architect on its motion for summary judgment. As to the claim that the architect failed to notify the Zoo of inconsistencies in the elevation documents, the court held that it was not enough for the architect to simply notify the Zoo that the White Survey conflicted with the Imel & Graber drawings. The fact that the architect failed to notify the Zoo that the White survey also conflicted with the elevation certificates was enough ward off the motion for summary judgment. The court explained that “a reasonable juror could infer that [the architect] was aware of a discrepancy between the elevation certificates and the White survey but failed to notify the Tulsa Zoo of the inconsistencies…”
As to the argument that the architect failed in its professional duty of care, the court held that a reasonable jury could find that an architect practicing in Tulsa and exercising professional skill and diligence would have explained the significance of the discrepancy between the White survey and the Imel & Grabel drawings, rather than simply notifying the Zoo of that discrepancy.
So, what can an architect learn from this case? After all, the architect seemingly did plenty of things right when it came to the errant White survey. The architect reviewed all the various information provided by the Tulsa Zoo and identified that the White survey was at odds with the older documents that contained finished floor elevations. The architect then notified the Tulsa Zoo of some of these discrepancies and confirmed with the Tulsa Zoo that the White survey should take precedence. However, this was not enough to get out of the dispute with the Tulsa Zoo short of a full, and expensive, jury trial. Still, the Tulsa Zoo case should provide architects with a few important takeaways:
(1) One lesson this case clearly provides is that the mere fact that an owner hires a consultant will not insulate an architect from liability that arises from an error in that consultant’s work. Here, the Tulsa Zoo hired White as a separate consultant and the agreement between the Tulsa Zoo and the architect allowed the architect the right to rely on information provided White. Nonetheless, the architect was not able to escape costly litigation even though the surveyor was overwhelmingly culpable for the Tulsa Zoo’s damages.
(2) This case also shows that if an architect uses a consultant’s work product to guide its own work, it will be an uphill battle to show that the architect didn’t know about errors, omissions, or inconsistencies in that consultant’s work product. This is true even if the architect didn’t hire the consultant and had no expertise in that consultant’s design discipline.
(3) This case also provides some guidance for what an architect should do if it discovers an error in the work product of a separate consultant. In such a situation, the architect should promptly notify the owner and describe in detail how the consultant’s work product is in error or contains inconsistencies. Simply showing one example of an inconsistency will not suffice. An architect should also take steps to explain to the owner why the error or inconsistency could be important to the outcome of the project. For an architect in this situation, there may be no magic bullet to escape potential liability; however, being detailed and thorough in communicating errors and inconsistencies to the owner could help.
(4) Lastly, although it is not common for architects to hire surveyors, it might be advisable for an architect to consider doing so in the wake of this decision. This case suggests that surveying company was underinsured, and that the Tulsa Zoo had no prior experience in hiring surveyors. If the architect hired the surveyor directly, it might have known to require higher insurance coverage limits and could potentially have been better equipped help identify shortcoming in the surveyor’s work.
AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.
[1] 2019 WL 1029544, at 9 (N.D. Okla. Mar. 4, 2019)