The First Department, over a dissent, determined an architect, Perkins, could be sued for both breach of contract and negligence in a lawsuit stemming from the settling of a building and other structures in the vicinity of new construction. The court also concluded the plaintiff city, although not mentioned in the contract with the architect, had raised a question of fact whether the city was an intended third-party beneficiary of the contract. With respect to when a professional-party to a contract can be liable in tort, the court wrote:
Perkins, as architect, may be subject to tort liability based on a failure to exercise due care in the performance of its duties. In making this determination, the court is to look at the nature of the injury and whether the plaintiff is merely seeking the benefit of its agreement. Where the plaintiff is merely seeking the benefit of its agreement, it is limited to a contract claim … .
Where, however, “the particular project . . . is so affected with the public interest that the failure to perform competently can have catastrophic consequences,” a professional may be subject to tort liability as well … . Indeed, “[t]his is one of the most significant elements in determining whether the nature of the type of services rendered gives rise to a duty of reasonable care independent of the contract itself” (… citing Sommer v Federal Signal Corp., 79 NY2d 540, 553 [1992]). As the Court explained in Sommer, “[I]t is policy, not the parties' contract, that gives rise to a duty of care” … . The “nature of the injury, the manner in which the injury occurred and the resulting harm” are also considered … .
Here, there is a factual question whether Perkins assumed an independent legal duty as an architect to perform its work in a manner consistent with the generally accepted standard of professional care in its industry. Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 2016 NY Slip Op 01546, 1st Dept 3-3-16
NEGLIGENCE (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)/CONTRACT LAW (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)/ARCHITECTS (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)