Design Professional Liability For Damage To Neighboring Building Caused By Excavation

When can an architect or engineer be held responsible for damage to a neighboring building caused by excavation for a project they designed?  That question was addressed by two recent appellate division decisions, in which the courts considered the level of the design professional’s involvement, and the theory under which they are being sued.

The two most common claims asserted by adjacent owners against design professionals in this situation are for negligence and breach of Administrative Code §28-3309.4, which imposes absolute liability upon a person who causes an excavation to be made. (While courts generally treat violation of a municipal ordinance, such as the Administrative Code, as only some evidence of negligence, Administrative Code §28-3309.4 in particular is treated differently because it was originally a State statute. The New York Court of Appeals has held that its violation can be the basis for absolute liability. See Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.S.3d 481, 941 N.Y.S.2d 20 (2012).)

In 87 Chambers, LLC v 77 Reade, LLC, 122 A.D.3d 540, 998 N.Y.S.2d 15 (1st Dep’t 2014), the plaintiff whose building was damaged during excavation, asserted claims against the architect and the engineer on the construction project (among others), sounding in both negligence and absolute liability based on violation of Administrative Code §28-3309.4. In considering their motions for summary judgment, the First Department reached different results for the architect and the engineer.

The court in 87 Chambers dismissed the negligence claims against the architect because of its minimal involvement during the excavation phase, based on the facts and the architect’s contract with the owner. The architect’s contract “did not specifically impose any duties with respect to the excavation phase of the project” and also “expressly stated that [architect] did not have control over, and was not responsible for, the construction means and methods”. Id., 122 A.D.3d at 541, 998 N.Y.S.2d at 17. Furthermore, while the architect apparently had unspecified “involvement” in “discussions related to the means and methods to be employed in the excavation”, and “general responsibilities to visit the site during construction to monitor compliance with the contract”, the court found that the architect “did not exercise actual supervision or control over the damage-producing work”.   Id., 122 A.D.3d at 542, 998 N.Y.S.2d at 18.

The 87 Chambers court also dismissed the §28-3309.4 claim against the architect, finding that “its knowledge that some excavation would take place” did not raise a question of fact as to whether “it ‘cause[d] an excavation’ within the meaning of section 3309.4.” Id.

The 87 Chambers court had a different take on the engineer’s role, however, and denied its motion for summary judgment because of evidence that the engineer recommended excavation design changes that were adopted over the excavation contractor’s objections, and that purportedly were the cause of the damage to plaintiff’s building. Id. The court also declined to dismiss plaintiff’s statutory claim based on Administrative Code §28-3309.4 against the engineer, because the court found an issue of fact as to “whether [engineer] substantially contributed to the design and methodology employed during the excavation process and therefore was a ‘person’ who ‘cause[d] an excavation’ within the meaning of section 3309.4.”

More recently, the Second Department in American Security Ins. Co. v. Church of God of St. Albans, 13 A.D.3d 903, 16 N.Y.S.2d 247 (2nd Dep’t 2015), looked at the architect’s contractual obligations to the owner performing the excavation and concluded that they did not give rise to tort liability to the neighboring property owner because the architect had no duties during the excavation phase, and because the contract stated the architect “did not have control over and was not responsible for, the construction means and methods or the safety precautions taken”. Id. The court noted that the architect had “involvement in discussions related to the means and methods to be employed in the excavation” and had “general responsibilities to visit the site during construction to monitor compliance with the contract” but found that those responsibilities “did not raise an issue of fact as to whether he entirely displaced the owner’s duty to maintain the premises”. Id.

In both cases the architects had some involvement in discussions of excavation means and methods, but the courts found that their role was relatively minor and did not justify liability for damage caused by excavation. However, the minimal facts cited in these appellate decisions make it difficult to state a clear rule as to the level of a design professional’s involvement required to overcome summary judgment on a claim for damage to a neighboring building caused by excavation.