Wisconsin Court Of Appeals Rules Architect Has No Professional Duty To Include In Its Design Temporary Bracings Needed During Truss Installation
January, 2004
Wisconsin Court Of Appeals Rules Architect Has
No Professional Duty To Include In Its Design Temporary Bracings Needed During Truss Installation
by: James M. Hoey
jhoey@clausen.com
In Baumeister v. Automated Products, Inc., 2003 WL 22725562 (Wis. Ct. App. 2003), construction workers injured when the roof trusses they were installing collapsed brought an action against an architect for negligently failing to design or approve safe temporary truss bracing for use during construction.
The architect entered into a contract with a church for design services. The church in turn separately contracted with a general contractor to build the church. The injured workers were employed by a sub-contractor.
The contract between the church and the general contractor required with regard to truss installation that the contractor comply with recommendations of Truss Plate Institute design specifications for metal plate connected trusses as well as State of Wisconsin code requirements and that the contractor install materials and systems in accordance with manufacturer’s instructions and approved submittals.
The architect designed the building and prepared contract specifications for the wood trusses. The general contractor, in turn, sub-contracted with another company to supply the trusses that fit the architect’s specifications. Attached to the sub-contractor’s truss design was the following direction:
The builder shall be responsible for proper truss handling and bracing. A guide for the qualified builder may be but is not limited to “handling and erecting wood trusses” by TPI, Inc.
The Truss Plate Institute summary sheet arrived with the trusses at the construction site.
During installation of the wood trusses they collapsed. The Truss Plate Institute guidelines for installation and temporary bracing were not followed. For purposes of analysis the court assumed the trusses collapsed because of inadequate temporary bracing either on the trusses themselves or on other components of the building.
The injured workers argued that the architect had a contractual duty to provide safe temporary truss bracing instructions. They also contended that the architect had a duty under the Wisconsin Administrative Code to personally supervise truss installation. Further, they asserted that the architect had a duty to provide safe temporary truss bracing instruction under either general common law negligence principles or because he had a professional duty to do so as an architect.
The Court of Appeals rejected the argument that the architect was negligent because he personally did not supervise the installation of the trusses, finding it vague and undeveloped in the written record, and disavowed by the workers’ own attorney during oral argument.
The Court of Appeals then addressed whether the architect had a contractual duty to provide safe temporary truss bracing instructions. The Court observed that the contract between the architect and the church expressly provided that the architect was not the entity responsible for on-site construction procedures. The contract provided that “the architect shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the contractor’s responsibility under the Contract for Construction.”
The Court noted that the architect was not hired to supervise construction. The architect’s on-site obligation under the contract was limited to determining whether the completed building was in accordance with the contract documents. The court concluded that nothing in any contract to which the architect was a party required that the architect supervise installation of the trusses or provide temporary truss bracing instructions.
The injured workers also claimed that the manufacturer’s instructions explicitly state that the temporary bracing is the architect’s responsibility. The Court of Appeals found that nothing in the truss manufacturer’s instructions explicitly states that the architect is responsible. Moreover, the Court observed that the injured workers did not even attempt to explain why a directive from the truss manufacturer could impose a contractual duty on the building architect. Further, the manufacturer’s instructions did not say that the architect of the building was responsible for providing temporary truss bracing instructions. Rather the manufacturer’s instructions read:
Both temporary and permanent bracing are required and their design is the responsibility of the project architect or engineer.
The Court found that the injured workers did not provide any basis on which to conclude that the architect was the “project architect” within the meaning of the manufacturer’s instructions. Finally, the Court observed that the injured workers did not explain why, with respect to this particular project, it is the project architect and not the project engineer who was responsible.
The Court of Appeals also addressed the argument whether the architect had a duty under the Wisconsin Administrative Code to personally supervise truss installation. The Court recited the Wisconsin Administrative Code which provides:
All constructions or installations. . . shall be supervised by a Wisconsin registered architect or engineer. . . the person responsible for supervision shall also be responsible for the construction and installation being in substantial compliance with the approved plans and specifications.
The Court found that this language did not place on the architect the duty to personally supervise or assume safe construction. The Court reasoned that the regulatory duty to supervise pertains only to insuring that the construction is completed in accordance with the approved plans and specifications.
The injured workers also argued that although the contractor may have been responsible for putting the truss bracing in place, the architect had superior knowledge regarding the temporary bracing needed for safe installation. They asserted that this superior knowledge, by itself, created a duty to provide temporary truss bracing instructions. The Court of Appeals found that this assertion was not supported by legal authority or reasoned argument. Superior knowledge alone does not create liability. For example, the fact that a manufacturer of an electric circular saw has superior knowledge of the safe use of circular saws does not, by itself, create a duty on the part of the manufacturer to oversee the safe use of the circular saw it sells. The Court of Appeals disagreed with the argument of the injured workers that it was self evident that an architect who designs or specifies a building component has a duty to insure safe installation regarding that component.
The next issue addressed by the Court was whether by failing to provide safe temporary truss instructions, the architect breached a professional duty of care exercised by a reasonable architect under similar circumstances. The Court observed that architects, like builders and contractors, are held to a standard of reasonable care for the protection of anyone who may foreseeably be in danger by their negligence. Specifically, an architect has the duty to use the standard of care ordinarily exercised by members of that profession. The architect submitted affidavits of experts that under the circumstances of this case, it had no professional duty to provide safe temporary truss bracing instructions.
The injured workers relied on affidavits of an engineering professor. The Court of Appeals concluded that the engineering professor’s affidavits did not present admissible evidence on the topic of the architect’s professional standard of care, because the professor did not assert directly or through facts that he was qualified to give an expert opinion on the professional responsibility of architects.
The Court of Appeals went on to state that even if they construed the engineering professor’s affidavits as containing admissible evidence for the general proposition that an architect is responsible for providing temporary truss bracing instructions, judgment in favor of the architect would still be appropriate. The Court reasoned that the architect’s contract with the church directs that the contractor, not the architect, is responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work.
Finally, the Court observed that the injured workers had a causation problem. They asserted that the architect was negligent when he required that the Truss Plate Institute bracing instructions be followed. However, the architect directed the general contractor to follow the truss manufacturer’s installation instructions. The truss manufacturer specified that the Truss Plate Institute temporary bracing procedure be followed. The TPI bracing procedures were not followed. Under this scenario there was simply no cause and effect. The Court reasoned that since the injured workers did not follow the Truss Plate Institute guidelines, they could not show that the architect’s directive that the guidelines be followed was a substantial factor in producing their injuries.
Learning Point
Design professionals should insist upon written contract provisions which clearly express the scope of their responsibility. The contract should state that the architect shall not have control over, or charge of, and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the contractor’s responsibility under the Contract for Construction. The architect shall not be responsible for the contractor’s failure to carry out the work in accordance with the contract documents. The architect shall not have control over, or charge of, acts or omissions of the contractor or sub-contractors.
Further, evidence presented against the design professional should be scrutinized to determine its admissibility and credibility. If the opposing expert is not qualified in the discipline or specialty involved, or if the basis of the assertion is suspect or unsubstantiated, the evidence should be attacked.
If you would like a copy of this decision, please contact Jim at jhoey@clausen.com. •
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