In Demetro v. Dormitory Authority of the State of New
York, 170 A.D. 3d 437 (N.Y. 2019), a New York Appellate Court addressed
whether an architect’s failure to identify deviations from its designs subjected
the architect to liability for personal injuries as a result of the defective
condition. On a Motion for Summary Judgment, the Court found there was a
genuine issue of material fact regarding whether a contractor’s deviation from the
design, and subsequent failure to correct deviation, was an intervening and
superseding cause which relieved the architect from liability.
Cannon Design was retained by Dormitory Authority of the
State of New York (“DASNY”) to provide architectural services. Cannon provided
performance specifications to the contractor, Martin Associates (“Martin”), who
then selected the specific equipment to meet the specifications. Cannon was
also required to “visually inspect on a bi-weekly basis” the work in progress for compliance with the contract drawings.
During an inspection, Cannon noticed the port covers on the
boiler system were attached with angle irons, which did not conform to Cannon’s
design or the approved shop drawings. Recognizing these covers needed to be
replaced, Cannon notified both DASNY and Martin of the defect, neither of whom
replaced the covers. Eight (8) months later, an employee, Louis Demetro
(“Plaintiff”), was injured when one of the angle irons disconnected and struck
him in the head.
Cannon was sued for negligently inspecting and detecting the
nonconforming design. Cannon filed for summary judgment, arguing it never
approved the angle irons, and timely notified DASNY and Martin of the nonconformance.
Cannon argued that even if it breached a duty, the failure to replace the port
covers with covers that conformed with the design constituted an intervening
and superseding cause of the injury.
The Court denied Cannon’s Motion for Summary Judgment,
holding there was a genuine dispute as to whether the use of the incorrect covers
and failure to replace the covers constituted superseding causes of Plaintiff’s
injuries. Cannon pointed out that it had identified the defective construction,
notified the owner and contractor of the condition and eight (8) months had
passed since the notification with no remedial action by the owner or contractor.
The Court held, however, that a jury could conclude it was normal and foreseeable that the contractor would fail to address the
defect in a timely manner, so that the conduct was merely a concurring cause of
the injury, not an intervening cause.
This case should remind architects to follow up and make sure variations from the design specifications which affect life/safety are remediated. If defects are discovered, ensure corrective actions are taken in a timely manner. In New York, now it is not simply enough to point out the existence of the defect.
