Words are powerful. Being acutely aware of word choice and precise language in contracts is key to a successful agreement. Even in the world of construction, words matter as shown by the recent Louisiana Supreme Court case, Gustavo Bonilla v. Verges Rome Architects—A Professional Architectural Corporation, et al., 2023-0928 (La. 3/22/24), 2024 WL 1229219, — So.3d. — (2024). In Gustavo Bonilla, the Louisiana Supreme Court held no duty exists for an architect or contract administrator to protect against injury of a subcontractor’s employee, relying upon the Louisiana Civil Code for contract interpretation.

In this case, the City of New Orleans (“NOLA”) entered into a construction contract with a general contractor, Tuna Construction, LLC (“Tuna”) to renovate a multiservice center; this construction contract contained attachments including NOLA’s General Conditions. Tuna then subcontracted with Meza Services, Inc. (“Meza”) for demolition services. NOLA separately entered into a Design Agreement with Verges Rome Architects (“VRA”) as a consultant for “professional design and contract administration services.” Id., 2024 WL 1229219, at *1. VRA also retained an engineering consultant, Morphy Makofsky, Inc. (“MMI”), on the project. When construction ensued at the project, an employee of sub-subcontractor Meza, Mr. Bonilla, was injured on the second floor of the building when a large concrete vault structure collapsed during demolition.

The injured worker of the sub-subcontractor filed suit against the architect, VRA, and MMI, alleging “negligence in preparation and approval of the design plans and specifications, the failure to design and/or require support for the area being demolished, and the failure to monitor and supervise the execution of the plans to ensure safety at the job site.” Id., 2024 WL 1229219 at *2. VRA was granted summary judgment by the trial court by arguing that under relevant contractual provisions, it owed no duty to oversee, supervise, or maintain the construction site or the worker’s safety. The Fourth Circuit Court of Appeal reversed “inferring a duty from contractual provisions relating to required site visits and reporting deviations from the contract.” Id.

In reversing the appellate court and upholding the trial court’s decision, the Louisiana Supreme Court emphasized “the duty owed to an employee of a contractor by an engineer or architect is determined by the express provisions of the contract between the parties.” Id. Relying upon Louisiana Civil Code articles 1983, 2045, and 2046, the Court held that the clear and unambiguous language of the General Conditions and Design Agreement dictated that VRA owed no duty to the sub-subcontractor’s employee, Mr. Bonilla. Id., 2024 WL 1229219 at *6. While noting that Section F(5) of the Design Agreement required the architect to make weekly visits, the purpose was to ensure that progress and work was proceeding per the Specifications. Further, the Court focused upon Section 2.3 of the General Conditions stating “undertaking the periodic visits and observations by [Architect] or his associates shall not be construed as supervision of actual construction.” Id., 2024 WL 1229219, at *7. The Court recognized that safeguards required of the General Contractor in the General Conditions for safety and strength of scaffolding, staging, hoisting equipment and temporary shorting further supported that the architect was not liable for a breach of any duty to the subcontractor’s employee. Id., 2024 WL 1229219 at *8. The result of Gustavo Bonilla aligns with common sense and typical expectations, that the contractor, not design professionals are customarily responsible for safety and for their means and methods.

23-0928.C.OPN.pdf (lasc.org)