Post Beacon California Appellate Case Finds No Duty for Designer

In State Ready Mix Concrete v Moffatt and Nichols, 2d Civil No. B253421, the California Court of Appeals found that an engineer did not owe a supplier a duty of care and therefore dismissed the supplier’s cross-complaint.  The course followed the lead of Beacon[1] by applying the Biakanja [2] factors to determine whether a duty existed.

Certainly, the ruling would seem to provide protection to engineers from direct actions brought by contractors and suppliers.  However, as with Beacon itself, the application of the Biakanja factors make it difficult to develop hard fast rules.  While designers would like to argue that they do not owe contractors a duty of care when producing their design, this case will not be particularly helpful.

In State Ready Mix, Moffatt & Nichols did not develop the concrete mix design but only reviewed it for the benefit of the project manager.  More importantly, State Ready Mix produced a non-conforming concrete and failed to test the concrete to make sure it met the specification.  These two factors weighed heavily in the courts analysis.  This decision will be of little value in an instance where the contractor attempts to sue a design professional alleging that the designer’s work caused the contractor increased costs.  The application of Beacon to this scenario and other common situations will be looked at in depth during a panel discussion at West Coast Casualty’s Construction Defect Seminar in Anaheim, California, May 14 & 15, 2015.


[1] Beacon Residential Community Assn. v. Skidmore, Owings & Merrill (2014) 59 Cal.4th 568
[2] Biakanja v. Irving (1958) 49 Cal.2d 647

Beacon Expanded Beyond Prime Architect to Geotechnical Engineer

In a recent trial court decision (Flaherty v Dolan, Case No. CGC-12-522648), a San Francisco judge found as a matter of law that a geotechnical engineer responsible for providing geotechnical services, including ongoing services during construction, owed a duty to future purchasers of lots in a residential subdivision.

The court found the engineer, who was under direct contract with the developer, “had a key role in the development of the project.” In support of this conclusion, the court found significant fairly standard scoping language for geotechnical engineers and many design professionals. “The purpose of our services is to (1) work with the design team and contractor and (2) observe the construction/installation of the geotechnical related elements of the project to check they are constructed in accordance with the intent of our recommendation.”

The geotechnical engineer also had written to the developer outlining the risk of potential landslides that should be disclosed to future homeowners, which the court found implicated the engineer in the disclosure process.  Finally, the court pointed out that the geotechnical engineer had been paid several hundred thousand dollars in fees.

From this court’s interpretation of Beacon Res. Comm. Ass’n v Skidmore, Owings & Merrill LLP, (2014) S208173 it seems that where the design professional has a meaningful role during construction and is paid for the project what the court views as a sizeable fee, there is a significant risk of owing a direct duty to future residential purchasers.