In a decision highlighting the erosion of privity as a barrier to liability in construction-related claims, a California appellate court reversed summary judgment in favor of a soils engineering firm, holding the firm owed a duty of care despite the absence of a contractual relationship with the homeowner. The case involved allegations that the firm conducted only a cursory geotechnical inspection during a residential remodeling project. When the homeowner's property later suffered substantial damage due to subsidence, she sued for professional negligence and nuisance. Although the trial court initially found no duty absent a direct contract, the appellate court disagreed recognizing a duty of care regardless of privity.
Background of the Case
Cheryl Lynch retained contractors to complete a two-phase remodeling and addition project on her San Clemente property. Prior to construction, the architect requested a geotechnical evaluation from Coastal Geotechnical, which issued a proposal warning of the property's location on a "queried landslide." Despite this, no comprehensive subsurface testing or slope stability analysis was performed during construction.
In April 2018, the contractor engaged Peter & Associates, a soils engineering firm, for a $360 geotechnical inspection of an excavated footing trench for the addition. The firm explicitly excluded subsurface testing or slope stability analysis from its scope of work and disclaimed responsibility for settlement or slope failure. Peter & Associates performed a visual inspection and briefly probed the trench with a steel rod, concluding in a one-page handwritten memo that the soil was "geotechnically acceptable."
Soon after, the footing was poured, but the soil failed. The addition collapsed and the house experienced substantial subsidence and lateral movement toward the slope. Lynch was forced to undertake significant remedial work, including installation of caissons and grade beams. As of 2023, the home remained damaged, with visible structural distress, foundation cracks, and measurable deflection exceeding 4.9 inches. Lynch sued Peter & Associates for professional negligence and nuisance, despite having no direct contractual relationship with the firm.
Peter & Associates moved for summary judgment, arguing it bore no legal responsibility under either theory. The firm emphasized its limited role and reminded the court it was retained solely for a one-time footing inspection, performed no subsurface testing, and charged only $360 for its services. It also pointed to contractual disclaimers and the absence of any direct contract with Lynch. The firm argued that it owed no duty of care to Lynch and could not be liable for nuisance based on such minimal involvement. The trial court agreed and granted summary judgment in favor of Peter & Associates. The appellate court, however, disagreed and reversed the trial court's ruling.
Professional Negligence and the Evolving Scope of Duty in Construction Cases
Under California law, a claim for professional negligence must be anchored in a duty of care, one that reflects the skill, prudence, and diligence commonly exercised by members of the profession. Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 1137. Traditionally, such duties arise from contractual privity, but as established in Biakanja v. Irving (1958) 49 Cal.2d 647, and reaffirmed in numerous decisions since, privity is no longer a strict prerequisite. Courts now apply a multi-factor test, the Biakanja factors, to determine whether a duty of care exists even absent a direct contractual relationship. They include:
- The extent to which the transaction was intended to affect the plaintiff,
- Foreseeability of harm,
- Certainty of injury,
- Connection between the conduct and the harm,
- Moral blame, and
- The policy of preventing future harm.
These factors have been applied in a range of professional contexts, including construction.
In the present case, Peter & Associates, a geotechnical firm hired by the general contractor, attempted to avoid liability by asserting lack of privity and emphasizing its minimal $360 role in inspecting a single-footing trench. However, the firm's inspection failed to uncover unstable soil conditions that led to significant subsidence and structural damage to the Lynch residence.
The appellate court found this argument unconvincing, especially in light of precedent found in Gagne v. Bertran (1954) 43 Cal.2d 481, where a soil consultant was held liable for failing to exercise due care in a geotechnical evaluation. The Gagne court stated, "The services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for negligence. Those who hire such persons are not justified in expecting infallibility but can expect only reasonable care and competence. They purchase service, not insurance."
The court here reasoned that like the consultant in Gagne, Peter & Associates was hired for its expertise and had a professional duty to conduct a meaningful inspection. Despite the fact that the parties in Gagne were in privity, the court found that the rationale for imposing a duty - reliance on professional skill and foreseeable harm-applied with equal force here.
The court rejected Peter & Associates' reliance on the Weseloh Family Ltd. Partnership v. K.L. Wessel Construction Co. (2024), case distinguished it from the current situation. In Weseloh, the court granted summary judgment in favor of engineers who were only marginally involved in a commercial project and had no meaningful contact with the property owners. The court determined unlike Weseloh, this case involved residential property, a more direct relationship between the work performed and the homeowner, and a report explicitly addressed to Lynch.
Moreover, the court cited additional persuasive authority. In M. Miller Co. v. Dames & Moore (1961) 198 Cal.App.2d 305, a soil engineer was held to owe a duty to third-party contractors who relied on its report, even absent a direct contract. Additionally, in Shurpin v. Elmhirst (1983) 148 Cal.App.3d 94, the court imposed a duty of care on a geotechnical firm whose slope reconstruction recommendations directly affected a neighboring homeowner.
Finally, the court emphasized the significance of Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014), in which the California Supreme Court recognized a duty of care owed by design professionals to future residential occupants, despite the absence of contractual privity. Beacon was a significant decision that signaled a willingness to depart from narrow interpretations of professional duty in residential construction contexts.
Here, the court concluded that all six Biakanja factors supported a finding of duty. The inspection was intended to benefit Lynch as homeowner of the property and harm was foreseeable if the soil inspection was not performed correctly. Damage was also clearly alleged and Peter & Associates' conduct was closely tied to the injury as a trier of fact could conclude that the inspection completed should have identified the soil issues. Moral blame was implicated by the limited and arguably inadequate scope of work and the court found imposing a duty in this case would help prevent future harm.
Accordingly, the court held that Peter & Associates clearly owed Lynch a duty of care in conducting its geotechnical inspection, one that required it to meet the standard of competence expected of professionals in its field.
Nuisance
In addition to her negligence claim, the homeowner brought a separate cause of action for private nuisance, alleging that subsidence from faulty construction continued to damage her property and interfere with her use and enjoyment of her home. The trial court, however, granted summary judgment on the nuisance claim, reasoning it was duplicative of the negligence claim. It relied primarily on El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337.
On appeal, this reasoning was firmly rejected. The court held that the Peter & Associates failed to address or negate any element of the nuisance claims in its motion. The firm offered no legal authority or substantive evidence to support the assertion that its limited involvement, a single site inspection, absolved it of nuisance liability. California law makes clear that liability for nuisance is not limited to those who maintain a nuisance but extends to parties who create or contribute to it. Shurpin v. Elmhirst (1983) 148 Cal.App.3d 94, 101.
Furthermore, the court underscored that nuisance and negligence are legally distinct causes of action, even when based on overlapping facts. As established in Chase v. Wizmann (2021) 71 Cal.App.5th 244, a claim for private nuisance requires proof of (1) substantial interference with the plaintiff's use and enjoyment of property, (2) causation of substantial actual damage, and (3) the interference is unreasonable in nature, duration, or amount.
The appellate court found that the homeowner's nuisance allegations met these criteria. The ongoing structural damage to the home was more than trivial; it represented a substantial and unreasonable interference with property use. Peter & Associates' inspection, allegedly deficient, was also a contributing factor to this harm.
Finally, the court rejected the claim that nuisance and negligence claims based on the same facts are necessarily duplicative. It found this interpretation improperly merges two distinct tort theories and risks imposing additional elements (such as duty) not required for nuisance claims. The court reaffirmed that plaintiffs are entitled to assert alternative legal theories, even if they arise from the same factual foundation. Based on these findings, the appellate court reinstated the homeowner's nuisance claim.
Summary judgment was reversed, and the case is remanded to the trial court for further review.
Moving Forward
This ruling serves as a cautionary reminder to all construction professionals that minimal involvement and lack of privity do not guarantee immunity for tort claims. The court's refusal to conflate negligence and nuisance affirms the plaintiffs' right to pursue multiple legal theories arising from the same conduct. Moreover, the decision highlights the continued vitality of the Biakanja factors in determining duty and signals that even modest roles in a project can carry significant legal exposure, especially when the consequences of faulty work are as substantial and enduring as structural damage to a home.
