### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON RECONSIDERATION EN B ANC

NO. 03-09-00518- CV

Black + Vernooy Arc hitects, J. Sinclair Black, and D. Andrew Vernooy, Appellants

v. Lou An n Smith; Jim m y Jackson S m ith, Ind ividu ally and as Next F riend of Rachel and Gr ayson S m ith; and Karen E. G ravely, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-0 6-0 0261 5, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

O P I N I O N

Our opinion and judgme nt issued on Dec ember 8, 2010, are withdrawn, and the following opinion is subs tituted.

Appellee s L ou Ann Smit h, J immy J ackson Smit h, individually and as next friend of Rache l and Gra

y son Smit h, and Kar en E. Gra vely (collec tively , the “Smiths”) sued appellants Bla ck

+ Ver nooy Arc hitects, J

. Sinclair Bla ck, and D. Andre w Ver nooy (collec tively , the “Ar chitects” ) for
neg ligen ce in connec tion with injuries suffe red by L ou Ann Smit h and Kar en Gra vely when thesecond- floor balcony of a friend’ s home collapsed while they wer e standing on it. A jury found that 1
the injuries wer e p ar t i al l y cause d by the neg lige nce of the Arc hitects. The Arc hitects appea l the jury ’s deter

mination. Be cause the Arc hitects owed no duty to the Smit hs as a matter of law, we will

reve rse the judg ment of the district cour t.

BACK GR OUND
I n October 2000, Robert and Kathy Maxfield hired the Ar c h itects to desig n a vacation home for them. When the Maxfields hired the Arc hitects, they signe d an ag ree ment based on forms promulg ated by the American I nstitut e of Arc hitects that are used nationwide. As direc ted by the
ag ree ment, the Arc hitects desig ned the Maxfields’ residenc e and prepa red the construction draw ings and spec ifications. The pr oposed desig n had a ba lcony off the ma ster bedr oom. After hiring the Architects, t he Max fields later hired Steve N ash of Nash Builder s, I nc. as the g ener al contra ctor for the projec t. When Nash was hired, the Maxfields and Nash enter ed into a construction contra ct t hat was also based on forms promulg ated by the I nstitut e and that expli citly incorpora

ted terms from those forms. Under the contra ct, Nash wa s responsibl e for building the home and was authorized to hir e subcontra ctors to f acilitate the construction. During the construc tion, Nash hired a subcontrac tor, Steven Rodrig uez, to build t he balc ony . When Rodrigue z built the balcony , he did not do so in compl iance with the desig n draw ings. The desig n draw ings r equire d that the metal pipes supporting the balcony be we lded to steel plate tabs, which would then be bolted to the balcony

. As constructe d, howeve r, the metal

Although we will g ener ally ref er to the parties by their collective names, we will also ref er 1 to them individually

when ne cessa

ry . 2support pipes wer e attache d to the balcony using thin metal clips. The desig n draw ings also require d

that a metal support piece , ref err ed to as a “joist hang er,” be used to reinfor ce the attachme nt of eac h of the balcony jo i s t s to the exterior wall of the house. I n the actua l construction of the balcony , howeve r, no joist hang ers wer e used. Although require d by t h e desig n draw ings, the balcony handra il was not bolted to the house. Finally , the desig n draw ings called for the bal co n y t o be attache d to the exterior wall of the house by bolting it to a one-a nd-one- half-inc h-thick rim joist and another one-a nd-one- half inche s of wood blocking. Despite these specific ations, the balcony was
not attache d to the house using bolts, a rim joist, and blocking , but was instead nailed to a one-ha lfinch piece of ply

wood.
Over a y ear afte r the home was completed, K are n Gra vely and L ou Ann Smit h visited the Maxfields’ vacation home. At some point during the visit, Kar en and L ou Ann stepped out onto the upstairs balcony

. A few seconds later, the balcony separ ated from the exterior wall of the home and collapsed, causing the two women to fall approximately twenty fee t to the g round. L ou Ann was rende red a para

pleg ic as a result of the injuries that she suffe red i n t h e fa l l , and Kar en suffe red a broken f inge r, a c rushed toe, a

nd multipl e bruises.
Kar en and the Smit h family sued the M ax fi elds, Nash, and the Arc hitects for
neg lige nce in c onnection with the collapse of the balcony

. Nash and the Maxfields settled prior to trial. Under the terms of the settlement, Nash ag ree d to pay $1.4 milli on, and the Maxfields ag ree d to pa y $250,000. Ultimately , a jury trial was he ld to a ddress the issue of the Arc hitects’ liability

. A jury found that the injury was cause d by the neg lige nce of (1) the Arc h i t ec t s wh o d es i g ned the home, (2) the g ener al contra ctor who built the home, and (3) the fra ming subcontrac tor who installed

3the balcony

. The ju ry at t ri b u t ed 10% of the responsibility to the Arc hitects, 70% to Nash (the

g ener al contra ctor), and 20% to Rodrigue z (the subcontrac tor). Ba sed on the jury ’s finding s rela ted to damag es and pr oportionate re sponsibili ty , as we ll as adjustments for medical ex penses a ctually paid, the district court rende red judgme nt that the Smit h family rec over a total of $380,749.19 from the Arc hitects, plus prejudg ment interest, and tha t Kare n rec over nothingfrom the Ar chitects. 2

The Ar chitects a

ppeal the judg ment of the district cour t.

P RELIMINARY STATEMENT
Be fore addre ssing the issues raised on appea l, we fee l it is nece ssary to provide a littl e backg round reg arding what we are char g ed with deciding in this case and what decisions we are not fac ed with. Unquestionably , Kar en and L ou Ann wer e injured, L ou Ann suffe ring what can only be descr ibed as cata strophic injuries, as a result of their innocent decision to stand o n a b al cony that they rea sonably and justifiably believed was proper ly built. I t w asn’t. And L ou Ann’s life and the lives of her

family members ha

ve bee n irrevoc ably

damag ed as a

result.
I n this case , we are not being asked to make any decisions reg arding whether the Smit hs wer e entitled to rec over from the homeowner s, nor have we been asked to deter mine whether the Smi t h s m ay rec over from the g ener al contra ctor and subcontrac tor whose aby smal building

The d i s t ri ct court did not consider the settlement amounts rec eived from Nash and the 2 Maxfields when calc ulating the amounts owed to the Smit hs beca use the Arc hitects’ proportionate share of the damag es was smaller than the total damag es awa rd minus the total settlement amount. Compare Tex. Ci v. Prac. & Rem. Code Ann. § 33.012(b) (West 2008) (specify ing that amount of damag es must be reduc ed by dollar amounts of all set t l ements), with id. § 33.013 (West 2008) (explainin g t h at defe ndant is liable only for perc entag e of damag es equal to that defe ndant’s proportionate r esponsibility , provided re sponsibili ty does not exceed 50% ). 4prac tices led to this terrible t rage dy

. Fur thermore , we stress that in this appea l there has been no alleg ation that the Arc hitects neg lige ntly desig ned the balcony or that the Arc hitects actua lly cre ated the defe cts at issue. To the contra ry , the Smit hs alleg e that the defe ct was cause d by the construction
prac tices of the contra ctor and subcontrac tor when the balcony was not built in acc ordanc e with the desig n plans of the Arc hitects. Simi larly , the jury was not asked to deter mine whether the Arc hitects

wer e liable under a neg lige nt-undertaking theory

. Finally , and perha ps most importantly , we have 3

not been asked to make any deter mination reg arding any duty that the Arc hitects owed to the owner s of t he home (the Maxfields) or the e x tent of that duty ; instead, we ha ve only been a sked to dec ide whether the contra ctua l d uty that the Arc hitects owed to the homeowner s also extended to the Smit hs. Unquestionably , the Arc hitects enter ed into a contra ctual ag ree ment in which th ey
ag ree d to make periodic visits to the construction site, to repor t observe d deviations from the desig n plans to the Maxfields, a

nd to g uard the Maxfields ag ainst defe cts in the construction of the home; howeve r, the Smit hs and the dissent ask us to do something that has never been done in the history of Texas jurisprudenc e: they reque st this Court to transfor m and extend the contra ctual duty owed

The jury char g e did not submit a neg lige nt-underta king theory throug h an i n struction 3 reg arding whether

the Arc hitects knew tha t they wer e performing service s that were nece ssary for the Smit hs’ protec tion and whether the Smit hs relied on the Arc hitects’ perf ormanc e. See Torringt on Co. v. Stutzman , 46 S.W .3d 829, 837-39 (Tex. 2000) (listing el em en t s o f neg lige ntunderta king claim and concluding th at ap p el l an ts could not have been held liable for neg lige nt underta king beca

use jury char g e omitted elements of that claim); see also Restatement (Second) of Torts § 323 (1965) (stating that one who underta kes to rende r service s for another “which he should rec og nize as nece ssary for the protec tion of t he other ’s per son or things” is liable to “the other f or phy sical harm resulting from his failure to e x erc ise rea sonable car e to perf orm his underta king, if” failure incre ases r isk of harm or ha rm is suffer ed bec ause of other’s r eliance on underta king)

. 5to the M axfields into a common law duty owed to the S miths as vi sitors to the M axfields’ home.

Although our sy

mpathies extend to the S miths for t h e s u ff er i n g they have unjustl y been force d to

en d u re , this Court simply cannot crea te a new common law duty in order to uphold the relief t h at they soug ht ag ainst the Arc hitects.

Gene rally speaking , one has no duty to protec t an individual from a third party in the absenc e of a specia l rela

tionship betwee n the potential actor and the individual or in the absenc e of a relationship that imposes a dut y o n t h e p o t en t ial actor to control t he thi rd party ’s behavior. See Restatement (Second) of T orts §§ 314, 315 (1965). Neither of t hose circumstance s are prese nt in this case . Seeming ly acknow ledg ing that the law does not impose a du t y o n arc hitects to protec t house g uests of their clients, the Smit hs and the dissent sug g est that this Court cre ate a common law duty wher e none has exis ted befor e. The cre ation of a new common-law duty is a task better suited for the supreme court, not intermediate appellate courts, J.P. Morgan Chase Bank v. Texas Contract
C a r p et , Inc. , 302 S.W .3d 515, 535 (Tex. App.—Austin 2009, no pet.) (stating that intermediate appellate courts should be reluc tant “to rec og nize a new common-law duty that has no exis tence in established law” (c i t i n g L ubbock County v. Trammel’s Lubbock Bail Bonds , 80 S.W .3d 580, 585 (Tex. 2002))) , and no Texas case has sugg ested that an architec t could be liable t o a third party in the circ umstances pr esent in this case

.

Although we ultimately conclude that the Smit hs are not entitled to r ecove r ag ainst the Arc hitects bec ause the Arc hitects owed no duty of care to the S miths, the per ceive d harshne ss of that conclusion should be tempere d with the knowledg e that the Smit h s an d o t h ers simil arly situated may

rec over f rom those who ac tually

owed them a

duty

. I n fac t, as mentioned above , the

6Smit hs sought and obtained recove ry from the homeowner s and the g ener al contra ctor. Althoug h

the dissent may voice its disag ree ment with the exis ting boundarie s of the law, it is the very nature of law to impose limit s to both conduct as well as rec over y . M o re o ver, we cannot embra ce the dissent’s prophesy that the result we rea ch in this case w ill allow architects to “turn a blind ey e to
open and obvious structura l defe cts and esca pe liability ”; nor can we endorse the dissent’s asser tion that balconies will be falling from the sky with absolute impunity

. As the ear lier set t l ement demonstrates , t h er e are leg al conseque nces for those who neg lige ntly build balconies. Fur ther, althoug h arc hitects enter ing the ty pe of ag ree ment at issue i n this case may not owe a duty to the house g uests of their clients, they do owe a duty to their clients to endea vor to g uard ag ainst defe cts and will be liable to their c lients if they fail to comply

with that duty

.

DISCUSSIO N
As mentioned above, the jury found that the Arc hitects wer e neg lige nt and that their
neg lige nce proxi mately cause d the Smit hs’ injuries. Although the Arc hitects char acte rize their

asser tions as a single issue on appeal, they raise sever al rela ted challeng es to the jury ’s deter mination. First, they

asser t that they did not owe a

duty to third parties such a s the Smit hs to identify the balcony defe cts. Second, they contend that the ag ree ment that they enter ed into with the Maxfields did not impose on them the obliga tion to e nsure or g uara ntee that the home was built in compliance with their drawing s and s p ec i fi cations. Finally , the Architects arg ue that even if they owed a duty to the Smit hs, the evidenc e prese nted during trial was leg ally insufficient to suppor t a deter mination that they had, in f act, brea ched that duty

. The Smiths, on the other hand, asser t tha t the jury ’s deter

mination should be upheld beca use the Ar chitects owe d them a duty to identify

the

7defe cts and beca use l eg ally sufficie nt evidenc e was prese nted during the trial showing that the
Arc hitects breach ed that duty

. Be cause we ulti mately conclude that any potential duty to identify defe cts would not have extended to the Smit hs, we need not addre ss the Arc hit ec t s ’ second or third subissues.

To preva il on a claim of neg lige nce, a plaintiff must provide proof of the following three elements: “(1) a leg al dut y o wed by one person to another ; (2) a brea ch of that duty ; and (3) damag es p ro x i m at ely resulting from the brea ch.” Duke s v. Philip Johnson/Alan Ritchie Architects, P.C. , 252 S.W .3d 586, 591 (Tex. App.—For t Worth 2008, pet. denied) ; see Greater
Houston T

r a n sp. Co. v. Phillips , 801 S.W .2d 523, 525 (Tex. 1990). I n order to satisfy the duty element, the “plaintiff must establish both the exis tence and the violation o f a duty owed to the plaintiff by the defe n d an t

. ” Phillips , 801 S.W .2d at 525. I f the defe ndant has no duty , then he
cannot be held liable for neg lige nce. Morgan Chase , 302 S.W .3d at 530. I n g ener al, an individual has “no duty to take action to preve nt harm to others absent specia l rela tionships or circ umstances.” Torringt on Co. v. Stutzman , 46 S.W .3d 829, 838 (Tex. 2000). A duty may be “assumed by contra ct

or imposed by law.” Morgan Chase , 302 S.W .3d at 530. The exis tence of a duty “is a question of law for the courts to decide from the fac ts s u rr o u n d i n g t h e occur renc e in question.” Phillips , 8 01 S.W .2d at 525. Acc ording ly , appellate courts revie w de novo a deter mination reg arding whether a leg al duty

is owed. See B lock v . Mora , 314 S.W .3d 440, 444-45 (Te x . App.—Amar illo 2009, pet. dism’d).

8No Duty was Assu m ed by Contract
I n asser ting that the district court’s judgme nt should be upheld, the Smit hs arg ue that the Arc hitects had a duty to act as rea sonable and prudent arc hitects. Fur ther, they asser

t that t he
Arc hitects’ duty in t h i s case included the obliga tion to protec t the Maxfields (the owner s of the home) by observing the construction of the home to deter mine if the home was being built in compliance with the desig n plans and by repor ting any observa

ble deviations from the construction plans to the Maxfields. As an extension of this duty , the Smit hs also asser t that the Arc hitects owed them a duty as third-par

ty benef iciarie s to the ag ree ment betwee n the Maxfields and the Arc hitects.
As support for these asser tions, the Smit hs ref

er to the lang uag e of the standard- form
contra ct that the Maxfields and the Arc hitects enter ed into. The only parties to that ag ree ment wer e the Arc hitects and the Maxfields. Under the ag ree ment, in addition to seeking desig n service s, the Maxfields also paid the Arc hitects for “contr act administration service s” during the construction of the re sidence . Wit h respe ct to the provision of these se rvice s, the contra ct re quired the A rchitec ts
to visit the work site, to inform the Maxfields reg arding the prog ress of the construction, to g ener ally deter mine if the co nstruction was being perf ormed in the manner ag ree d to, to repor t “known deviations from the Contract Documents and from the most rec ent construction schedule submitt ed by the Contractor,” and “to endea vor to g uard the [Max fields] ag ainst defe cts and defic iencies in the Work.” I n fac t, the agr eeme nt authorized the Architects “to reje ct Work that does not confor m to the Contract Doc uments” and to inspec t or test “the Work.” 4

The lang

uag e of the rele vant provisions of the contr act pr ovides as follows: 4
2.6.5 The Arc hitect, as a repr esenta tive of the Owner , shall visit the site at intervals 9Fur thermore , the Smit hs ref

er to testimony by the Ar chit ects and Mrs. Maxfield 5

appropr iate to the state of the Contractor’ s opera tions, or as otherwise ag ree d by the Owner and the Arc hitect in Article 12, (1) to become g ener ally familiar with and to keep the Owner informed about the prog ress and quality of the portion of the Work completed, (2) to endea

vor to g uard the Owner ag ainst defe cts and defic iencies in the Work, and (3) to deter

mine in g ener al if the Work is being perf ormed in a manner indicatin g that the Work, when fully completed, will be in acc ordanc e with the Contr ac t Documents. Howeve r, the Arc hitect shall not be require d to make exhaustive or continuous on-site inspections to chec k the qualit y or quantit y of t he Work. The Arc hitect shall neither have control over or char g e of, nor be responsible for, the construction means, methods, techniques, sequen ce s o r proce dures, or for safe ty prec autions and prog rams in connec tion with the Work, since these are solely the Contractor ’s rig hts and responsibilities under the Contrac t Documents.
2.6.6 T h e Ar ch i tect shall repor t to the Owner known deviations from the Contract Documents and from the most rec ent construction schedule submitt ed by the Contractor. Howeve r, the Arc hitect s h al l n o t be responsible for the Contractor’ s failure to perf

orm the Work in acc ordanc e with the require ments of the Contract Documents. The Arc hitect shall be responsible for the Arc hitect’s neg lige nt acts or omissions , but sha ll not have control over or cha rg e of a nd shall not be responsible for acts or omissions of the Contractor, Subcontrac tors, or their ag ents or employ ees, or of a ny other pe rsons or entities per forming portions of the Work.

. . . . 2.6.10 The Arc hitect shall have authority to reje ct Work that does not confor m to the Contract Documents. Whenever the Arc hitect considers it nece ssary or advisable, the Arc hitect shall have authority to require inspection or t es t i n g o f the Work in acc ordanc e with the provi s i o n s of the Contract Documents, whether or not such Work is fabr icated, installed or completed. Howeve r, neither this au t h o ri ty of the Arc hitect nor a decision made in g ood faith either to exercise or not to exercise such authority shall g ive rise to a duty or responsibility of the Arc hitect to the Contractor, Subcontrac tors, materia l and equipment suppliers, their ag ents or employ ees or other persons or e ntities performing portions of the Work.

Robert Maxfield did not testi fy at trial. I n their appe llate brief s, the Smit hs also ref

er to 5 deposition testimony from both of the Maxfields that they attache d as an exhibi t to thei r b ri efs; howeve r, those depositions are not part of the appellate rec ord. See Tex. R. App. P. 34.1 (setting out contents of appellate rec ord); see also Carlis le v. Philip Morris, In c. , 805 S.W .2d 498, 501 (Tex. App.—Austin 1 9 9 1 , writ denied) (explaining that materia ls outside rec ord that are improperly 10reg arding the contra ct and the obliga tions imposed. I n particula r the Smit hs point to testimony by Bla ck indicating that he had a duty to the Maxfields to repor t any problems with the construction that he observe d and to testimony by Mrs. Maxfield stating that part of the rea son that she hired Bla ck

6

was beca use he had supervised the construction of her friend’ s h o m e “ver y conscie ntiously ,” explaining that it wa s her understanding that the Arc hitects wer e obliga ted under the ag ree ment to
reg ularly visit the construction site and to inform her and her husband reg ard i ng any aesthe tic or
structura l issues, and descr ibing that it was her expectation that “ther e would be supervision that the house wa s being built.”

I n light of the prec eding , particula rly the Arc hitects’ obliga tion to “ende avor to g uard

. . . ag ainst defe cts and defic iencies” and to g ener ally deter mine if construction of the home is being done in acc ordanc e with the construction plans , t h e S m i t h s asser t that the Arc hitects owed the Maxfields the dut y to p ro t ec t t h em from variance s in the design pl ans. Moreove r, t hey insist that

a lt h o u g h they have no contra ctual rela tionship with the Arc hitects, the Arc hitects’ duty also e xte n d e d to them as third-par

ty benef iciarie s to the ag ree ment. An individual is a third-par ty benef iciary to a contra ct only if the contra cting parties intended to secur e a benef it to the third party and also “ente red into the contra ct direc tly for the third party ’s benef

it.” Stine v. Stewart , 80 S.W .3d 586, 5 8 9 (T ex . 2 0 0 2). I f the benef it is mere ly

attache d to party ’s brief

may not be consider ed on appe al). During the trial, Bla ck also testified that he considere d contra ct administration service s to 6 include making periodic site visits to observe the prog ress of the work, e ndeavor ing to pr otect the owner ag ainst defe cts and defic iencies, try ing to make sure the home is g ener ally built in compliance with construction documents, and chec king shop draw ings ag ainst the desig n intent. Bla ck further testified that in pe rfor

ming contra ct administration f or the Maxfields, the Arc hitects ave rag ed two visits t o the construc tion sit e per month. 11incidental, the third party has no rig ht to rec over. Id. ; see also Loyd v. ECO Res., Inc. , 956 S.W .2d

110, 134 (Tex. App.—Houston [14t h Dist.] 1997, no pet.) (explainin g t h at “fa ct that a person is direc tly aff

ecte d b y t h e parties’ conduct

. . . does not make him a third party benef iciary ”).
Moreove r, the contra ct “must clea rly and fully express an intent to confe r a direc t benef it to the third party ”; in ot h er wo rd s , a third-par ty -bene ficiar

y status may not be cre ated by implication. Stine , 80 S.W .3d at 589. There is a presumption agai nst third-par ty -bene ficiar

y ag ree ments, and

acc ording ly , all doubts must be resolved aga i n s t a fi nding that an individual is a third-par ty benef iciary

. Raymond v. Rahme & W illiams Inv

s. , 78 S.W .3d 552, 561 (Tex. A pp.—Austin 2002,

no pet.). The intent of the contra cting parties must be deter mined by examining the entire contra ct, and cour ts should give e ffe ct to all of the c ontrac t’s provisions. Stine , 80 S.W .3d at 589. Although the S m i t h s correctly point out that the contra ct imposed a duty on the
Arc hitects “to ende avor to g uard a g ainst” def ects a nd defic iencies in the c onstruction of the home and t o generally asce rtain whether the home was being built in compliance with the construction plans, those responsibilities wer e contra cted for the benef it of the Maxfields. Nothing in the lang uag e of the contra ct demonstrates that these duties wer e to be eng ag ed in for the benef it of third part i es . On the contra

ry , the ag ree ment specific ally stated that “[n] othing contained in this Ag ree ment shall cre ate a contra ctual rela tionship with or a cause of action in favor of a third par

ty
ag ainst either the [Max fields] or [t he] Arc hitect[s] .” Cf. Duke s , 252 S.W .3d at 594 (explaining that

arc hitect’s “duty

depends on the particula

r ag ree ment enter ed into with his employ er” ).
I n light of the prec eding , particula rly the clea

r lang uag e expressly disavowing thirdparty benef

iciarie s, we must conclude that when the Arc hitects enter ed into the ag ree ment with the

12Maxfields, they assumed no contra ctual duty to third-par ties to the ag ree ment, including the Smit hs.
See MCI Telecomm s. Corp. v. Texas Utils. Elec. Co. , 995 S.W .2d 647, 651-52 (Tex. 1999); Morgan Chase , 302 S.W .3d at 531.
No Duty was Imposed Under Com m on Law

I n addition to their asser

tion that the Arc hitects owed them a duty under the contra ct, the Smit hs als o contend that the Arc hitects owed them a duty under common law. Although no

case s have imposed a duty under the circ umstances pr esent in this a ppeal, the Smit hs never

theless seek the cre ation of a duty not previously rec og nized under Texas law. When making this asser tion, the Smit hs note that a deter min at i o n reg arding the exis tence of a duty depends on “seve ral interre lated fac tors,” including the fore seea bility and likelihood of injury

. See Phillips , 801 S.W .2d

at 525 (listing fac tors for courts to consider when deter mining whethe r d efe ndant owed duty to plaintiff). Fur

ther, the Smit hs insist that t h o s e fa ct ors are satisfied in this case beca use “the for[e]seeability and likelihood of injury from a failure of a balcony hang ing over twenty fee t above

a stone structure is a

ppare nt a nd well-known to all liable parties.” I n other words, the Smit hs urg e that th e Ar ch i t ec t s ’ owed a leg al duty extending to them as house g uests beca use they wer e “for esee ab l e u s er s.” I n addition, the Smit hs asser t that due to the dang ers resulting from faulty construction and due to the public’s relianc e on arc hitects, “public policy demands that contra ctual privity not be an indispens[ a]ble require ment for a duty of car e to houseg uests, or other for[e]seeable

users of the balcony .” See Hermann Hosp. v. National Standard Ins. Co. , 776 S.W .2d 249, 252-53 (Tex. App.—Houston [1st Dist.] 1989, writ denied) (explaining that althoug h contra ctual

13rela tionship “a ssures a sufficie ntly close nexus betwee n the parties upon which [courts] may fairly

predic ate liability , it is not . . . indispensable to the imposition of a leg al duty of ca re” ). Arg uably the fore seeab i lity and likelihood-of-injury fac tors could be viewed as weig hing in favor of extending an arc hitect’s duty of car e. I f an arc hitect fails to identify and repor t

a structura l de fec t, a risk of harm can exis t. L ikewise, when the defe ct implicates critica l safe ty or
structura l integ rity conce rns, one would suspect an incre ased likelihood of phy sical injury

. I t is also fore seea ble that the risk of phy sical injury includes harm to third-par ty visitors, as it would seem to be a rar e case wher e no person would use a structure other than the owner with whom an

arc hitect contra cts.

Howeve r, fore seea

bility and likelihood of injury are not the only fac tors to consider when de ciding whether

a duty exis ts. Rather, the risk, for esee ability , and li kelihood of i njury are
to be weig hed ag ainst the social utilit y of the actor ’s conduct, the mag nitude of the burden of gu ar d i n g ag ainst the injury , and the conseque nces of placing that burden on the actor

. Bird v. W .C.W

. , 868 S.W .2d 767, 769 (Tex. 1994)

. I n addition, a cour t may consider w hether

one party has superior knowledg e of the risk, whet h er o n e party has a rig ht to control the actor who

ca u s ed t h e harm, Graff v. Beard , 858 S.W .2d 918, 920 (Tex. 1993), and whether leg islative

enac tments evidenc e the adoption of a particula r public policy signific ant to the rec og nition of a new common-law duty , Thapar v. Zezulka , 994 S.W .2d 635, 639-40 (Te x . 1999).

The “rig ht to control” consideration weig hs ag ainst extending an arc hitect’s duty to third parties in this case . See Loyd , 956 S.W .2d at 130 (explaining that rig ht to control is “ofte n the deciding fac tor” when deter mining exis tence of leg al du t y ). I n the “abse nce of a rela tionship

14betwee n the parties g iving rise to the right of control, one person is under no leg al dut y to control

the conduct of another , even if there exis ts the prac tical ability to do so.” Graff , 858 S.W .2d at 920;
compare Van Horn v. Chambers , 970 S.W .2d 542, 546-47 (Tex. 1998) (finding no inhere nt rig ht to control in phy sician-pa tient rela tionship that would impose duty on phy sician to protec t third parties from patient), with Otis Eng’g Corp. v. Clark , 668 S.W .2d 307, 309-11 (Tex. 1983) (explaining that
if employ er exercises control over employ ee beca use employ ee has become incapa citated, employ er has duty to preve nt employ ee from causing unrea s o nable risk to others). The rig ht to control can arise both by contra ct and b y ac t u al exercise of control. See Lee Lewis Constr., Inc. v. Harrison , 70 S.W .3d 778, 783-84 (Tex. 2001) (conc luding that more than scintilla of evidenc e exis ted showing th a t g e n e r a l c o n tr actor reta ined control over safe ty fea tures and approve d use of faulty safe ty device ).
On e’ s duty of car e with respe ct to another party ’s work “is commensura te with” the con t ro l h e
reta ins over that wor

k. See id. The ag ree ment betwee n the Arc hitects and the Maxfields specifie d that althoug h the
Arc hitects had the ability to rejec t the work done by Nash, they

had no power to c ontrol the actua l construction work perf

ormed at the site. See Shepherd Components, Inc. v. Brice Petrides-Donohue
& Assocs. , 473 N.W.2d 612, 616 (I owa 1991) (conc luding that eng ineer did not owe duty of car e to others beca

use eng ineer had no rig ht to control work perf ormed and only had “re sponsibili ty for quality control”) ; see also Coastal Marine S er v. o f T ex., Inc. v. Lawrence , 988 S.W .2d 223, 226 (Tex. 1999) (explaining that “rig ht to control must be more than a g ener al rig ht to order work to stop and st art, or to inspect progr ess”)

. Specifica lly , the agr eeme nt provi d ed t h at t he Architects “shall neither have control o v er or char g e of, nor be responsible for, the construction means, methods,

15techniques, sequenc es or proce dures, or for safe ty prec autions and prog rams in connec tion with the

Work.” I nstead, the ag ree ment explained that those obliga tions “ar e solely the Contractor’ s [Nash’s] rig hts and responsibili ties.” Fur ther, the ag ree ment specifie d that the Architects were responsible for their own acts or omissions but that they “shall not have control over or char g e of and shall not be responsible for acts or omissions of the Contractor, Subcontrac tors, or their ag ents or employ ees,

or of any other persons or entities perf orming portions of the Work.” Simi larly , the ag ree ment stated that the Arc hitects wer e not “re sponsible for the Contractor’ s failure to perf orm the Work in

acc ordanc e with the require ments of the Contract Documents.” I n addition, the ag ree ment explained that neither the authority bestowed on the Arc hitects by the ag ree ment “nor a decision made in g ood faith either to e x erc ise or not to exercise such authority shall g ive rise to a duty or responsibility of the Arc hitect[s] to the Contractor, Subcontrac tors,

. . . their ag ents or employ ees or other persons or entities perf

orming portions of the Work.” Although no t confronted with identical contra ctual lang uag e, a court of appea ls analy zing a simil ar contra ctual ag ree ment deter m i n ed t h at no rig ht to control was authorized by the ag ree ment. See Romero v. Parkhill, Smith & Coo per, Inc. , 881 S.W .2d 522, 526 (Tex. App.—El Paso 1994, writ denied)

. I n Romero , an eng ineer enter ed into an ag ree ment with a city to provide eng ineer ing service s for the construction of a plant. Id. at 524. Under the ag ree ment, the enginee r agr eed to make periodic vi sits to the construction site to “observe the prog ress of the executed work and to de termine in g ener al if such work meets the

. . . require ments of the contra ct documents” and to inspect the constructi on and deter mine if it has been completed in acc ordanc e with the contra ct documents. Id. at 525-26. Howeve r, the ag ree ment also specifie d that the eng ineer

16was not obliga ted to “m ak e ex h aust ive or continuous on-site inspections to chec k the quality or quantity of the work” ; was not “re sponsible for the construction means, methods, techniques,
sequenc es or proce dures” ; and was not “re sponsible for the acts or omissions of the contra ctor [or]
any subcontrac tor.” Id. Ultimately , the cour t deter mined that nothing in the contract between the city and the eng ineer g ave the eng ineer the right to control t he construction and, accor d i n gl y , that the eng ineer did not have a duty of car e to an employ ee of a subcontrac tor to keep the premises safe

. 7
Id. at 524, 527.

I n contra st to the ag ree ment betwee n the Arc hitects and the Max fields, the construction contract between the Maxfields and Nash g ave Nash the a bsolute rig ht to control the worksit e and the means of construction and also imposed on Nash signific ant supervisory
respon s i b i l i t i es and li ability

. See Hobson v. W aggoner Eng’g, Inc. , 878 So. 2d 68, 76 (Miss. Ct. 8

Other jurisdictions that have addre ssed this ty pe of contra ct have rea ched simil ar 7 conclusions. See Hobs o n v. W aggoner Eng’g, Inc. , 878 So. 2d 68, 73-76 (Miss. Ct. App. 2003) (conc l u d i n g that eng ineer owed no duty to war n or protect g ener al contractors or subcontrac tors); Shepherd Components, Inc. v. Brice Petrides-Donohue & Assocs. , 473 N.W .2d 612, 615-17 (I owa 1991) (dec iding that eng ineer did not owe duty of car e to othe rs and, there fore , could not be liable for neg lige nce of g ener al contra ctor reg arding safe ty proce dures used on construction site); Y ow v. Hu s s ey , Ga

y, Bell & DeYoung Int’l , 412 S.E.2d 565, 567-68 (Ga. 1991) (dete rmining that eng ineer owed no duty to person who was not involved in construction projec t but was injured when he entered construction site); W elch v. Gran t De v. C o
. , 466 N.Y.S.2d 112, 114-16 (N.Y. Sup. Ct. 1983) (affirming summary ju d gm en t against worke r i njured on construction si te because contrac t stripped arc hitect of supervisory power s and place d al l supervisory responsibility in hands of contra ct o r) ; Gordon v. Holt , 412 N.Y.S.2d 534, 536-37 (N.Y. App. Div. 1979) (conc luding that arc hitect who had duty to periodica lly inspect construction and repor t to owner of proper

ty did not have duty to future owner s and tenants); Luterbach v. Mochon, Schutte, Hack worthy, Juerisson, Inc. , 267 N.W.2d 13, 15-16 (Wis. 1978) (af firming summary judgme nt ag ainst car penter hired by g ener al contra ctor be cause contra ct did not require arc hitect to insure saf ety of construc tion sit e). The ag ree ment signe d by the Maxfields and by Na s h d i rec tly incorporated rig hts and 8 responsibilities outlined in “the 1997 edition of the Gene ral Conditi ons of t h e C o n t rac t for Construction, AI A Docume nt A201-1997.” 17App. 2003) (c oncluding that eng ineer had no duty to w arn, in pa rt, bec ause g ener al contra ctor ha d “full and absolute control over the work site and the means and methods of construction”)

. Specifica lly , the ag ree ment stated that Nash “shall not be relieve d of obliga tions to perf orm the Work in acc ordanc e with the C ontrac t Documents either by activities or duties of the A rchitec t[ s] . . . or by tests, i n s pections or approva ls require d or perf ormed by persons other than the Contractor.”
Moreove r, the ag ree ment also explained that Nash “shall supervise and direc t the work[;]

. . . . shall be solely responsible for and have control over construction means, methods, techniques, sequenc es and proce dures and for coordina ting all portions of t he Work[ ;]

. . . . shall be responsible to the [Max fields] for acts and omissions of [Nash’s] employ ees [and] Subcontrac tors[; ]” and “shall be responsible for inspection of portions of Work alre ady perf ormed to deter

mine that such portions are in proper condition.” I n addition, the agr ee m en t p ro vided t hat Nash “wa rra nts to the [ Maxfields] and [t he] Arc hitect[s]

. . . that the Work will be fre e from defe cts not inhere nt in the quality require d

or permitted, and t h at t h e W ork will confor m to the require ments of the Contract Documents.” Finally , the ag ree ment explained that the “Contrac tor shall indemnify an d hold harmless the [Max fields and the] Ar chitect[s]

. . . from and ag ainst claims, damag es, losses and expenses . . . to the ex tent ” that the claims, damag es, or losses wer e “cause d by the neglig ent acts or om issions of [Nash or] a Subcontractor.” 9

Even though the ag ree ment empower ed Nash t o hire subcontrac tors to perf orm 9 construction projec ts, it also allowed either the Maxfields or the Arc hitects to object t o Na s h ’s choice s. Howeve r, the Arc hitects did not have t h e authority to supervise the subcontrac tors. See Hobson , 878 So. 2d at 76 (noting , when deter mining th at eng ineer owed no duty to worke rs at construction site, that eng ineer did not have author ity

to supervise subcontr actor s). 18Moreove r, n o thing in the rec ord establishes that the Arc hitects exercised actua l

control over the construction of the balcony

. See Lee Lewis Constr. , 70 S.W .3d at 783 (explaining that althoug h deter

mining what contract say s is g ener ally question of law, “dete rmining whether

someone exercised actua l control is [] g en er all y a question of fac t for the jury ”). Although the testimony of various witnesses demonstrates that the Arc hitects perf ormed the functions outlined in the contract, none of t he testi mony or evidence presente d indicates that th e Ar chitects ex erte d the ty pe of control over the manner an d m et hod of the construction of the balcony as to war rant the imposit ion of the duty sug g ested by the Smit hs. See City of Keller v. W

ilson , 168 S.W .3d 802, 810 1 0

When asser

ting that the Arc hitects owed them a duty , the Smit hs ref er to actions taken by 1 0 the Arc hitects that they alleg e exceede d the Arc h i t ec t s’ duties under their ag ree ment with the Maxfields. The ag ree ment require d the Arc hitects to “re view and cer tify the amounts due [t o Nash] and [t o] issue cer

tificates in such amounts.” As proof that the Arc hitects exceede d the scope of the ag ree ment, the Smit hs point to the lang uag e in some of the cer tificates that stated that the Arc hitects had “inspec ted” the construction. Those cer tificates wer e p r e p a

r e d by Nash and provided, in rele vant part, a s follows:
Arc hitect’s signa

ture below is his a s s u

r a n c e to O w n er, conce rning the pay ment here in applied for, that (1) Arc hitect has i n s p ected the Work repr esente d by this Application, (2) such Work has been compl eted to the extent indicated in this Application, and the quality of workmanship and materia ls co n fo rm s with the Contract Doc uments . . . .
I n light of these cer

tificates for pay

ment, the Smit hs contend that the Arc hitects had ag ree d to ensure “that the c onstruction was prog ressing acc ording to the construction docume nts.”
Even assuming that the Arc hitects’ revie w of the pay ment appl i cations did impose some additional obliga tion on them, that obliga tion would have extended to the Maxfields for whom the Arc hitects ag ree d to perf orm that task. I n fac t, the cer tificates re l i ed on by the Smit hs and the ag ree ment betwee n the Arc hitects and the Maxfields specifie d that the Arc hitects’ cer tifications for pay ment wer e assura

nces and re p re s en t at ions to the Maxfields. Moreove r, the imposit ion of an obliga tion to inspect is inconsistent with the terms of the ag ree ment, which clar ified that the “issuance of a Certifica te for Pay ment shall not be a repr esenta tion that the Arc hitect[s] ha[ve] (1) made exhaustive or continuous on-site inspections to chec k the quality or quantity of the Work [or] (2) reviewe d constructio n m ea ns, methods, techniques, sequence s or procedure s.” I n addition, as 19(Tex. 2005) (explaining that co u rt s sustain leg al-suff iciency challeng es when rec ord reve als complete absenc e of evidenc e of vital fac t, that evidenc e offe red to prove vital fac t is no more than

mere scintilla, or that evidenc e conc lusively establishes opposite of vital fa ct). Reg arding the social utilit y of the Arc hitects’ conduct, under the ag ree ment betwee n the Arc hitects and the Maxfields, the Arc hitects ag ree d to repor t all k n o wn d ev i at ions from the desig n. I n addition, the contra ct g ave the Arc hitects the authori t y t o require inspection of the
structure

. There is signific ant social utilit y in h aving the arc hitect responsible for desig ning a
structure also ag ree to provide some oversig ht reg arding whether the structure is b ei n g b u i l t i n

acc ordanc e with the desig n. I n g ener al, homeowner s will not have the requis i t e k n o wl edge or training to be able to asce rtain whether the construction is prog ressing proper ly or to provide a chec k
to potential builder incompetenc e, and any involvement by an arc hitect during the construction will provide some potential chec k and will also encour ag e adh er en ce to the desig n. Moreove r, if an

we previously mentioned, this case does not involve a neg lige nt-underta king claim, but we do note that nothing in the rec ord indicates that the Smit hs ever revie wed these cer tificates or relied on them in any manner . See Stutzman , 46 S.W .3d at 837-39 (listing elements of ne g lige nt undertaking ).
Fur t hermore , when discussing these cer tificates, Bla ck testified that the lang uag e of those cer tificates did not comply

with the lang uag e of the ag ree ment and that the Arc hitects only ag ree d to use t hem s o that Nash could reta in them for his rec ords. Bl ac k fu rt h er clarified t hat he did not inspect the work as part of the pay ment cer tifications and explained that the Arc hitects prepa red their o wn ce rt ificate s that they sent to the Maxfields along with Nash’s cer tificate and that the para l l el forms wer e consistent with the lang uag e of the ag ree ment. The para llel forms provided as follows:
I n acc ordanc e with t he Contrac t Documents, base d on on-site observations and the data comprising the above- ref ere nc e d A p p li c a ti o n f o r Pa y me n t, th e A r c h it e c t cer

tifies to the Owner that to the best of Arc hitect’s knowledg e, informa tion, and belief, the Work has prog resse d as indicated, the quality of the Work is in acc ordanc e with the Contract Documents, and the Contractor is entitl ed to pay ment of the Amount Certified, including overa g e as descr ibed in documents provided by the Contractor.

20ar ch i t ect is able to identify deviations from the desig n plans ear ly in the construction proces s , t h e

arc hitect will be able to minimi ze the cost of corr ective construction and limit the need for expensive reha bilitative modifications occurr ing a fter the home has be en construc ted.

I ndeed, the rec ord reve als sever al insta n ces in which the Arc hitects’ service s wer e benef icial beca use they we re ab l e to identify multipl e deviations from the desig n ear ly on in the construction process and wer e able to provide advice re g arding ameliora tive actions that could be underta ken to preve nt the need for more costly repa irs later. For example, during one of their ear lier visits to the site, the Arc hitects notified Nash that the “fr amer had fra med a wall too high,” and the wall was lowere d to comply with the desig n draw ings. I n addition, the Arc hitects also asked Nash
to p l ac e ca ps on the ends of the metal pipes used in the structure in order to avoid problems with insects building nests in the pipes. Fur ther, a field repor

t prepa red by the Arch i t ec t s reve aled deviations from the plan that they identified reg arding the kitchen bay window and reg arding the place ment of lig hts and elec trical outlets.

T h e mag nitude of the burden urg ed by the Smit hs would also be signific ant. I t i s noteworthy in this case that the Arc hitects did not notice the def ec t s at i s sue. During trial, Bla ck testified that when he revie wed various photogr aphs o f t h e const ruction work to deter mine if the balcony was built “[i] n compliance with the desig n intent,” he did not notice the defe cts or deviations from the desig n draw ings. I n other words, this is not a case in which an arc hitect noticed a defe ct 1 1
but failed to repor

t the defe ct despite having a duty to repor t known deviations. Fur

thermore , under the ag ree ment, the Arc hitects wer e only obliga ted to make periodic visits to the site. For this rea son,

Although Bla ck explained that he did not have a duty to spot defe cts, he testified that he 1 1 believed tha t if he discover ed something , he had a n absolute duty

to report it to the contra ctor. 21the Arc hitects might not have even had an opportunity to observe a particula r projec t befor e it wa s

com p l et ed

. M o reove r, as descr ibed above, Nash had control over the manner and means of construction and, acc ording ly , over the way i n which a particula r item was constructe d.
Acc ording ly , the absenc e of any particula r piece of construction during a particula r visit would not

nece ssarily indicate that the piece would not be added later. Reg ardle ss of the limit ed nature of the
Arc hitects’ re sponsibili ties under the a g ree ment, the Smiths essentially seek to impose the bur den of identify ing e very

defe ct. The conseque nces of plac i n g such a burden on arc hitects would likewise be signific ant. Under the terms of the ag ree ment, the Ar ch i t ec t s did not ag ree to be g uara ntors or insurers of the work of the g ener al contra ctor. Howeve r, this is the prac tical conseque nce of the duty
soug ht by th e S m i t hs. The duty soug ht by the Smit hs would expose the Arc hitects to lawsuits broug ht by parties that the Arc hitects could not h av e identified at the time of enter ing into the
contra ct. To protec t ag ainst liability , the Arc hitects would hav e neede d to eff ectively take on the duty of ca re of a g uara ntor so as to ensure that all critica l matters wer e fully observe d. Holding the Arc hitects liable would also have the conse q u en ce of curta iling the fre edom of homeowner s and arc hitects to establish by contra ct the nature and scope of an arc hitect’s service s, see Morgan Chase , 302 S

. W

. 3d at 534 (explaining that fre edom of contra ct is strong ly favor ed public policy

); Duke s , 252 S.W .3d at 594-95 (explaining that scope of arc h i t ec t ’s duty depends on particula

r ag ree ment he enter ed into with his employ er) , and would be inconsistent with the limited role for the Arc hitects established by the ag ree ment. Although the ag ree ment require d the Arc hitects to monitor the construction and to “ende avor to g uard” ag ainst defe cts, the ag ree ment in this case expressly limit ed those obliga tions

. Fo r example, the ag ree ment clar ified that the

22Arc h i t ects wer e not “re quired to make exhaustive or continuous on-site inspections to chec k the

quality or quantity of the Work” a nd wer e only

require d to report “ known deviations.” F inally , as mentioned ear lier, the ag ree ment also specifie d that “[n] o t h i n g co ntained in this Ag ree ment shall

cre ate a contra ctual rela tionship with or a cause of action in favor of a third party ag ainst either the [Max fields] or [ the] Architect[s] .”

Had the Maxfields wanted the Arc hitects to be g u a r antors or insurers, they could have
contra cted for such service s and would likely have ha d to pay a highe r fee

. I nstead, the Maxfields
contra cted for an intermediate level of service s—obtaining from the Arc hitects some oversig ht but
not a g uara

ntee. Under this ty

pe of ag ree ment, the owner obtains an arc hitect’s assistance without having to pay for a full g uara ntee, and the arc hitect provides assistance without having to incur the ty pe of liability involved with providing a g uara ntee. I mposing t he ty

pe of duty sug g ested by the Smit hs onto arc hitects under the ty pe of industry -standar d ag ree ment at issue in this case would reduc e the likelihood that arc hitects would ag ree to enter into s u ch agreements in the future or, at the very least, incre ase the compensa tion require d for the arc hitects’ service s, despite the signific ant social utilit y of such ag ree ments. See Luterbach v. Mochon, Schutte, Hack worthy, Juerisson, Inc. , 267 N.W.2d 13, 16 (Wis. 1978) (noting that holdin g ar chit ect liable would rende r him safe ty supervisor, which would require con t inuous prese nce even though contra ct only require d periodic visits).

Reg arding whether the Arc hitects had superior knowledg e, there is no alleg ation that the Arc hitects’ desi g n was not sufficie ntly communicated to the g ener al contra ctor or to the subcontrac tor who constructe d the balcony

. Thus, while the Arc hitects m ay have had superior knowledg e reg arding why the balcony require d cer tai n me th o d s o f c o n s tr

u c tion, nothing in the rec ord

23indicates that the Arc hitects’ knowledg e reg arding what methods wer e actu all y require d in

acc ordanc e with the desig n—i.e., the metal support pipes and steel plate tabs, the joist hang er, and the bolts, rim joist, and wood blocki n g— wa s superior to that of Nash (the party with the rig ht to control the balcony ’s cons t ru ct i o n) or Rodrigue z (the party who constructe d the balcony ). More importantly , g iven that Nash and Rodrigue z wer e char g ed with the actua l const ru ct i o n o f the balcony , it cannot be disputed that they had superior knowledg e of whether their actions confor med
to the desig n plans. L ikewise, the Arc hitects’ knowledg e of the importance of proper ly attaching 1 2

a second- floor balcony would not be superior to that o f an y o t h er party involved in the balcony ’s construction. 1 3

During his testimony , Bla ck admitted that he and another arc hitect knew the desig n plans 1 2 better than any

one else . Howeve r, the Smit hs’ expert witness, J ohn Pierce , also conce ded that the individuals who built the balcony wer e more famili ar with the actua l balcony and how it was constructe d than any one. I n fac t, he testified that the subcontrac tor had to know that the balcony had not been constructe d in compliance with the desig n plans and that key components had been left out.

After analy

zing whether the Arc hitects or the subcontrac tor and contra ctor had superior 1 3 knowledg e, the dissent then considers whether the Arc hitects’ knowledg e of the construction of the balcony was superior to that of the Smit hs. Unquestionably it was. And there has been no alleg ation in this case that the t y

pe of threa t posed by the poorly const ru ct ed balcony is “within the ordinary k n o wl ed ge common to the community .” See Joseph E. Seagram & Sons, Inc. v. McG uire , 814 S.W .2d 385, 388 (Tex. 1991) (re fusing to rec og nize leg al duty of alcohol manufa cture r to war n consumers ag ainst dang er of al co h o l i sm beca use risk is common knowledg e). Acc ording ly , the dissent’s compar ison of the knowledg e possessed by the Arc hitects and by the Smit hs seems misplaced. I n this case , we are char g ed with asce rtaining whether the Arc hitects’ alleg ed actions and inactions wer e sufficie nt t o i m p o se a duty of car e. I n making that deter mination in this case , the knowledg e element is used to asce rtain which of the parties involved in the construc t i o n of the balcony had g rea ter knowledg e of the neg lige nt ma nner in w hich the balcony was built. See Graff v. Beard , 858 S.W .2d 918, 921-22 (Tex. 1993) (dete rmining that social hosts who make alcohol available to their g uests do not owe common law duty to third pa

rties who may be injured if g uest become s intox icated and drive s home; in reac hing r esult, court compa red w hether

host of party or g uest is in better position to know g uest’s level of intox ication). For the re asons discussed a

bove, we do not believe that the Arc hitects possessed the supe rior knowledg e. 24Finally , there h av e been no leg islative enac tments identified by any party in this

case that would evidenc e the ad o p t ion of a particula r public policy in favor of imposing a duty of ca re on a n arc hitect under

these c ircumstance s. 1 4 Having considere d all the relevant factors, we cannot conclude th at t h e imposit ion of a n ew common law duty on arc hitects is war rante d in these circ umstances. This seems particula rly true in this case wher e the g ener al contra ctor had a duty to inspect and an absolute rig ht
to control t he subcontractor’ s work and t o war rant and g uara

ntee that work and wher e the injured third parties could (and did) obtain relief from the g ener al contra ctor for his brea ch of that duty

. I n making their reque st, the Smi ths a sk this Court to f undamentally alter the obliga tions of arc hitects working in Texas and to ignor e the lang uag e contained in contra cts that are u s ed industry wide. Although there may be compelling rea sons for expanding an arc hitect’s duty to use rea sonable car e in circ umstances like thos e prese nted in this appea l, the decision reg arding whether to underta ke such a m as s i v e ex p ansi on is better left to courts of highe r jurisdiction. See Morgan Chase , 302 S.W .3d at 535. Acc ording ly , we decline to rec og nize a new common-law d u t y u n d er t he circ umstances pr esent in this case

.

For these rea sons, w e conclude that the Arc hitects did not owe a duty to the Smit hs and sustain the Ar chitects’ issue on a ppeal.

As an alterna tive arg

ument supporting the jury ’s deter mination, the Smit hs contend that 1 4 the Arc hitects owed them a duty of car e b ec au s e t h e Arc hitects wer e ag ents of the Maxfields. Es s en t i all y , the Smit hs arg ue that the Arc hitects assumed “the duty of car e by virtue of their contra ct” with the Maxfields, that the Arc hitects’ neg lige nce “is direc tly imputed to the Maxfields,” and that the duty of car e was, there fore , owed to them “throug h that ag ency rela tionship.” Howeve r, the Smit hs ref

er to no case s or leg al authority supporting that asser tion, and we have been unable to find any

. 25Response to the Dissent The dissent attempts to minimi ze the import of its sugg estion that a duty should be

cre ated in this case by

stating tha t the duty applies only in “the ver

y limit ed cir cumstance s prese nt here .” Specifica lly , the dissent states that it would on l y co n cl u d e that a duty exis ts “whe re the defe cts wer e open, obvious, observa ble to the arc hitect, implicated critica l safe ty and structural integ rity conce rns, involved signific ant deviations from the arc hitect’s own desig n draw ings despite the fact t h at preapprova l of any such deviation was required, and wer e overlooked by an architec t who contra cted to provide contra ct administration service s.”

Whil e construc ting its narr ow holding, however , the di ssent employ s an over broad
approa ch. The dissent attempts to minimi ze the burden imposed on arc hitects by limit ing the duty
to “obser vable” and “sig nifican t ” d eviations that implicate “cr itical safe ty and structura l integ rity

conce rns.” Rather than limit ing the circ umstances in which an arc h i t ec t may be held liable, the dissent would essentially impose a new and wide-r ang ing duty upon arc hitects. The fac tors identified by t h e dissent are fac t issues that would likely survive summary -judg ment challeng es. Thus, provi d ed t h at a p l aintiff fra mes his cause of action in terms of the fac tors identified by the dissent, the architect would likely fac e the prospec t o f full litigation i n order to exonerate himself
in case s in which the arc hitect very well owes no duty to the plaintiff. Acc ordin gl y , the analy sis
sug g ested by the dissent would not rea lly seem to limit itself to the specific circ umstances identified by the dissent. I n addition, it is unlikely that one would know a defe ct’s signific ance until the defe ct is actua lly identified, and once a fa i l u re has occur red, near ly any defe ct could be arg ued to be

s i g nificant. I t would be a considera ble burden, then, to require an arc hitect to have d et ec t ed al l defe cts that, in hindsight, turn out to be “sig nificant” to a “c ritical” issue.
26Moreove r, althoug h the dissent cites to many case s as support for cre ating a duty

under the circ umstances in this case , none of the case s cited by the dissent provides any support for the conclusion that the Arc hitects, despite having no rig ht of control over the construction projec t, owed a duty to third parties to discover a defe ct in that construction. First, the dissent relies on First National Bank of

Akron v. Cann , 503 F. Supp. 419 (N.D. Ohio 1980), aff’d , 669 F.2d 415 (6th Cir. 1982), for the supposition that the Arc hitects can be liable to third parties for failing to comply with their duty to endea

vor to g uard ag ainst defic iencies as well as support for its evocative conce pt that

our holding will allow arc hitects to turn a “blind ey e” to construction defe cts and esca pe liability of
any kind. I n that case , the cour t stated t hat an arc hitect s hould not be “allow[ed] to close his ey es

on the construction site, ref rain from eng ag ing in any inspection proce dure wh at s o ev er, and then disclaim liability for construction defe cts that even the most perf unctory monitoring would have
preve nted.” Id. at 436. I n making that statement, the court in Cann was addre ssing the extent of the

arc hitect’s contra ctual obliga tion to observe the construction and to make periodic visits to the site.
Howeve r, the court in Cann was discussing the obliga tion that the arc hitect owed to the owner of the
proper ty in question arising from the contra ct t hat t he owner and t h e ar ch i t ec t enter ed int o. Id. at 435-37. No sug g estion was made that the arc hitect owed any duty to individuals that wer e not party
to the contra ct. Acc ording ly , the dissent’s utiliz ation of the impassioned lang uag e in Cann reg arding whether an ar chitect may ignor e his responsibility to endea vor t o g uard a

nd then later

disclaim all liability paints an incomplete picture beca use it f ails to provide the conte x t in which the statement

was made: in response to an arc hitect seeking to esca pe liability to the proper

ty owner s with whom he had c ontrac tually

ag ree d to protect.

27Simi larly , the dissent cites Hunt v. Ellisor & Tanner, Inc

. , 739 S.W .2d 933

(Tex. App.—Dallas 1987, writ denied) , as support for its assessment of the scope of the Arc hitects’ duty

. I n Hunt , the owner s of a construction projec t sued t h e ar ch i t ec t s with whom they had contracted for defe cts in the construction of a parking deck. Id. at 935. Th e o wn er s as s er t ed a brea ch of contra ct claim. Id. The court held that while the arc hitects did not insure or g uara ntee the
g ener al contractor’ s work, they could n onetheless be found l iable based on their contract with the

owner s under which they ag ree d to “ende avor to g uard” ag ainst defe cts. Id. at 937. Althoug h the dissent char acte rizes Hunt as prese nting “esse ntially the same arg ument,” there wer e no third-par ty visitors involved in Hunt

. Thus, the court did not addre ss the issue of whether the arc hitect’s duty under the contra ct would have extended to a third party as a common law dut y . See id. ; see also
Romero , 881 S.W .2d at 528 (explaining that holding in Hunt only applies to case s in which proper ty

owner is suing ar chitect f

or bre ach of

contra ct that both parties e ntere d into). 1 5
The dissent then cites Duke s , 252 S.W .3d 586, for the proposition that the Arc hitects

are not sh i elded from liability even though the Smit hs are not third-par ty benef iciarie s of the
contra ct. I n Duke

s , four people had drowne d in a city -owne d fountain, and their repr esenta tives sued the ar chitects who had contra cted with the city to assist with t he founta in’s ear lier re novation. Id.

at 590. Howeve r, the court conclude d that the arc hitects’ contra ct with the city did not impose a duty
to “re port or make safe any hazards that they may have detec ted in the” fountain. Id. at 594-95. As

The dissent also cites Gables CVF, Inc. v. Bahr, Verme er & Haec ker A r ch itect, Ltd. , 1 5 506 N.W.2d 706 (Ne b. 1993) as support for the proposition the Ar ch i t ec t s ar e liable i n this case . Howeve r, as with Hunt v. Ell isor & Tanner, Inc. , 739 S.W .2d 933 (Tex. App.—Dallas 1987, writ denied) , Gables CVF addre ssed whether an arc hitect owed a duty to the prop er ty owner to repor t deviations from the building desig n plans. 506 N.W.2d at 710. 28a result, the court did not proce ed to addre ss the issue of whether such a duty would have extended

to third-party

visitors. See id. The dissent relies on Council of Co-Owners Atlantis Condominium, Inc. v. WhitingTurner Contracting Co. , 517 A.2d 336 (Md. 1986), to conclude that an ar chit ect’ s duty of car e extends to “those persons fore seea bly subjected to the risk of persona l injury ” resulting from th e

arc hitect’s neg lige nce. See id. at 338 (limiti ng duty of car e to persons subjected to risk “bec ause of a latent and unrea sonably dang erous c ondition”). Howe ver, unlike the prese nt case , the ar chitects
in W hiting-Turner did have control over the construction of the building. Specifica lly , the arc hitects either wer e “super

vising arc hitects” or had ag ree d by contra ct “to inspect the building and to cer tify
to the Building I nspection Depa rtment of Oce an City , Mary land, that the building was constructe d pursuant to the approve d building permit in acc ordanc e with the plans and specific ations submitt ed with the orig inal permit application and that the building was rea dy for occupa ncy . ” Id

. at 339. Thus, W hiting-Turner does not provide prece dent for this case , wher e t h e Ar chitects, by contra ct,

wer e not responsible for the finished construction but mere ly ag ree d to “ende avor to g uard” ag ainst defe cts. I n an y ev ent, W

hiting-Turner is not a Texas case and is, there fore , not controlling to the outcome of this ca se.

Finally , the di ssent relies on an I owa case— McCarthy v. J.P. Cu l l en & Son Corp. , 199 N.W.2d 362 (I owa 1972)—for its asser tion that an arc hitect cannot rely on the provisions of its
contra ct with a proper

ty owner to avoid liability to a third party for neg lige nce. Howeve r, that case involved negligent design

. See id. at 370; see also Abalos v. Oil Dev

. Co. , 544 S.W .2d 627, 633 (Tex. 1976) (explaining that person has duty to preve nt injury to others when he neg lige ntly cre ates

29dang erous situation). This case is not a neg lige nt desig n case , and the Arc hitects did not cre ate the

construction def

ect. Thus, McCarthydoes not provide a ny prec edent a

pplicable to this case

.

CONCLUSION Having sustained the Arc hitects’ issue on appea l, we reve rse the judgme nt o f t he district c ourt and rende r judgme nt that the Smit hs take nothing in their suit ag ainst the Arc hitects.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ David Pury ear , J ustice
Be fore Chief J ustice Jones, J ustices Pury ear , Pemberton, He nson, Rose, and Goodwin; Dissenting O pinion by J ustice He nson, joined by Chief J ustice Jones
Reverse d and Rende red on Motion for Re hear ing Filed: Aug ust 5, 2011

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