In Bonilla v. Verges Rome Architects, 2023 WL 3371559 (La. App. 5th Cir. 2023), the Louisiana Fifth Circuit Court of Appeals held that an architect could be liable to an injured worker for failing to address a known safety issue, despite contractual language establishing site safety as solely a contractor responsibility.
The City of New Orleans (“The City”) renovated the Allie Mae Williams Multiservice Center, a local community center providing services for the local community. The City retained the architecture firm Verges Rome Architects, APAC (“Verges Rome”) to provide professional design and contract administration services. Tuna Construction, LLC (“Tuna”) was retained as the general contractor. Tuna then contracted with Plaintiff Gustavo Bonilla’s (“Mr. Bonilla”) employer, Meza Services, Inc. (“Meza”), to perform demolition services on the project.
On March 7, 2018, Mr. Bonilla was performing demolition work on a vault located on the second floor of the Center. Meza had previously demolished two of the vault’s walls. Mr. Bonilla was instructed by Meza to go on top of the vault to perform demolition work with a hydraulic jackhammer. While atop the vault, the entire structure collapsed, causing Mr. Bonilla to fall and sustain injuries to his neck and back.
Mr. Bonilla filed suit against Verges Rome. The trial court entered summary judgment in favor of Verges Rome on September 23, 2022, finding Verges Rome did not owe Mr. Bonilla a duty. Mr. Bonilla appealed the trial court’s grant of summary judgment.
On appeal, the Louisiana Court of Appeals for the Fifth Circuit held there were genuine issues of material fact as to whether Verges Rome owed Mr. Bonilla a duty to identify and report an unsafe condition. The Fifth Circuit looked to its past decisions in Black v. Gorman-Rupp, 791 So. 2d 793 (La. App. 4 Cir. 2001) and Young v. Hard Rock Constr., L.L.C., 292 So.3d 178 (La. App. 5 Cir. 2020), which held the contract dictates the duty owed by an engineer (or architect) on a construction project.
The Fifth Circuit noted that pursuant to the contract Verges Rome had no control over the methods, means, or procedures used in relation to the construction. However, among the evidence presented to the trial court was a photograph of the vault demolition taken by Verges Rome. In the photograph, Mr. Bonilla can be seen atop scaffolding with no replacement supports for the demolished walls in the vault, a safety hazard.
The Fifth Circuit distinguished Bonilla from Young and Black, noting the photograph clearly showed the demolition taking place in an unsafe manner. The Fifth Circuit held the photograph, along with testimony from the architect that he did not report the unsafe condition, presented a genuine issue of material fact as to whether the architect owed and breached a duty to Mr. Bonilla.
Architects and engineers should note Bonilla and the potential extra-contractual duties it establishes if the deign professional witnesses obvious safety hazards. The architects and engineers should take steps to report any unsafe conditions or risk extra-contractual tort liability.