Balcony didn’t use bolts specified

The original jury’s verdict was issued in favor of Smith, who suffered spinal damage when she and a friend stepped onto the third-story balcony of an Inks Lake home they were visiting. The balcony broke away from the house and sent the women to the ground.

A subcontractor had attached the balcony using 3¼-inch nails, not the bolts specified by the architect’s design, and deviated from other design specifications, photos and court testimony showed.

Black and his firm designed the house and had a contract with homeowners Robert and Katherine Maxfield that required the firm provide “administration of the construction contract.” It also required that he “visit the site at intervals” and “endeavor to guard the owner against defects and deficiencies.”

Black visited the construction site several times and took photos. He testified that he didn’t report any problems with the balcony because he didn’t notice any issues.

In 2010, a Travis County jury ruled that the general contractor, Nash Builders, was 70 percent to blame for the balcony collapse, that a subcontractor was 20 percent responsible and that Black and his firm were 10 percent liable.

Black and his lawyers had argued in their appeal that Black could not be held liable for the contractor’s negligence, and that while he had a duty to report any defects and deficiencies of which he was aware, he had no duty to identify any and all defects. Black also argued that while he had a duty to the Maxfields, he had no duty to visitors to the home.

In reversing the original jury’s decision, the 3rd Court of Appeals agreed with that argument.

Writing the opinion for the majority, Justice David Puryear said Smith and her family had asked the court “to do something that has never been done in the history of Texas jurisprudence; they request this court to transform and extend the contractual duty owed to the Maxfields into a common law duty owed to the Smiths as visitors to the Maxfields’ home.”

“Although our sympathies extend to the Smiths for the suffering they have unjustly been forced to endure, this court simply cannot create a new common law duty in order to uphold the relief that they sought against the architects,” he wrote.