“Use the right tool for the job” is also a good bit of advice in litigation, as underscored by a recent decision out of the Connecticut Appellate Court. The case is Fisk v. Redding, AC 37537 (April 19, 2016).
At the center of the case was a block retaining wall constructed as part of a streetscape improvement in Redding. Although unquestionably an upgrade (see links to the before and after street views), the construction was beset by two separate accidents in which pedestrians fell from the wall and were injured. The resulting lawsuit named the architect, contractor and Town of Redding as defendants, seeking recovery on a theory of public nuisance. Nuisance claims are often made against towns, less frequently against contractors, and rarely asserted against architects. This case demonstrates why. It also provides a refresher on nuisance claims.
As a fundamental distinction, nuisance claims focus on existing physical conditions, rather than (as with negligence) on the acts or omissions that brought them about. For someone who is not the actual owner of a nuisance-causing property, nuisance liability often turns on whether the their “use” of the property amounted to an exercise of “control.” In this case, an architect provided general design services, approved the retaining wall design submittal, and made occasional inspections. As would be expected, the architect did not own the land, or perform construction work, or assume responsibility for site safety. The plaintiff claimed, unsuccessfully, that the design and inspection duties amounted to “control” over the project site. The court disagreed, reasoning that the design was constrained by DOT specifications and town approvals, and the inspection responsibilities were not only limited in time, but also were subject to the contractor’s control of the site. The Court concluded that there was no evidence that the architect had controlling authority over the retaining wall at the time of the accident.
A nuisance claim was the wrong legal theory to use here against the architect, and would probably be the wrong theory against architects in most cases. When faulty architectural services are alleged, professional negligence will be the primary legal theory to pursue. The right tool for the job.