Law Review: Safety Review Not Specified in Contract
Kozlowski, James C., Parks & Recreation
A Texas case examines architects' duty to highlight safety hazards as part of a project review.
In contracting for personal services, an architect's duty depends on the particular agreement entered into with his or her employer. In the Dukes case described herein, there was no evidence in the contract between the architects and the city that the architects were required to conduct a safety review in their assessment of the city's water gardens renovation project.
As a result, the architects owed no legal duty to report any safety hazards observed during their review of the project. And absent a legal duty owed to park users, they could not be held liable for drowning deaths allegedly caused by the unreported safety hazards.
In the case of Dukes v. Phillip Johnson/Alan Ritchie, Architects, P.C. (Tex. App. 3/27/2008), Myron Dukes, Christopher Dukes, Lauren Dukes, and Juanitrice Deadmon drowned in the Fort Worth (Texas) Water Gardens on June 16, 2004. The court provided the following description:
No one knows exactly how Lauren and Juanitrice initially entered the Active Water Pool. Lauren was reportedly the first to enter the water, and Juanitrice reportedly tried to help her out and either fell in or jumped in the pool. Both Myron and Christopher Dukes drowned after entering the Active Water Pool in an effort to save the girls.
Since 1974, the Fort Worth Water Gardens, an outdoor urban park and water sculpture, have been an architectural favorite and a source of pride for the City of Fort Worth. The City has owned and controlled the Water Gardens since the 1970s. Prior to this accident, there had been no previous drowning deaths in the Water Gardens.
The Water Gardens were originally designed by architects Philip Johnson and John Burgee and were not intended for swimming. In the 1990s, the City determined that it would engage in a restoration and renovation of the Water Gardens in conjunction with the Fort Worth Convention Center Renovation Project. The City contracted with Huitt/Keller from 1994-2000 to perform an architectural assessment of the Water Gardens. In 1999, the City also contracted with Johnson/Ritchie and Johantgen as consulting architects ["the architects"].
Shortly after the accident, Dukes filed suit against the city of Fort Worth ["the city"] and a number of architectural and engineering firms, as well as individual architects, engineers, and contractors. Dukes settled with the city in 2005. The remaining defendants included architectural and engineering firms and individual architects and engineers who have been involved with the design or restoration of the water gardens. Each remaining defendant asserted that he or she owed no duty to Dukes. The trial court granted summary judgment to the architects. Dukes appealed.
No Duty, No Liability
On appeal, the issue was what, if any, legal duty the architects owed to the decedents. As noted by the appeals court, "If no duty exists, then no legal liability for a premises liability claim can arise." For a legal duty to exist, the court found "plaintiff must prove that the defendant had control over and responsibility for the premises" causing the injury:
Ordinarily a person who does not own the real property must assume control over and responsibility for the premises before there will be liability for a dangerous condition existing on the real property.
In so doing, the court acknowledged that an individual "who has created the dangerous condition or who has agreed to make safe a known, dangerous condition may be liable even though not in control of the premises at the time of injury."
In this instance, Dukes alleged that the architects "owed a duty to the decedents because, as professionals, they were under the ethical obligation to report any unsafe or hazardous conditions that they observed during their review of the Water Gardens."
Under applicable state law, the appeals court found "no binding authority to support Dukes' proposition that a court must take into consideration professional codes of ethics when conducting a duty analysis," concluding "professional negligence law has not yet been broadened to include the evaluation of professional codes of ethics in the determination of whether a duty is owed. …