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In this Issue:

  • Judgment Against Architects Reversed Due to Lack of Expert Testimony
  • Architect not liable for premises injury without evidence that design violated the standard of care
  • About This Newsletter

Judgment Against Architects Reversed Due to Lack of Expert Testimony

Expert testimony most be presented by a plaintiff to prove that a design professional violated the standard of care and was, therefore, negligent in the performance of professional services.

In Taylor v. DeLosso, 725 A.2d 51 (N.J. Super. A.D. 1999), the court reversed a judgment against an architect that designed an unworkable site plan for constructing a house and beauty salon. In preparing the site plan, the architect relied upon a survey that had been prepared by a professional land surveyor under a separate contract with the owner. That survey marked a 30-inch diameter maple tree that was located on the site. Unfortunately, it is was marked incorrectly and, without visiting the site, the architect relied upon it for laying out the lot location of physical features.

When construction began, the contractor found that contrary to the site plan, the maple tree was actually in the way of the driveway. As a result of this, the plaintiff spend more time and money to change the plans. She then sued the architect to recoup her losses.

At trial, the plaintiff had an expert witness testify that in his opinion the architect should have visited the site instead of relying on the survey. His testimony was “I’m just saying — I think general care in doing a small parking lot — I mean, I wasn’t at the time referring to standards in my mind. I was referring to just the general care shown on a small project. . . . There’s no standard that says on a small site, an architect has to verify the survey.”

Defendant filed a motion asking the trial court to dismiss the complaint for lack of sufficient expert testimony evidence. The court refused and judgment was awarded against the architect. In reversing that decision, the appellate court explained that the plaintiff had failed to introduce expert testimony to prove what the standard of care was or that the architect had violated that standard. According to the court, “It is insufficient for plaintiff’s expert simply to follow slavishly an ‘accepted practice’ formula; there must be some evidential support offered by the expert establishing the existence of the standard.” Moreover, said the court, “No reference was made to any written document, or even unwritten custom or practice indicating that the consensus of the architectural community recognizes a duty of site inspection for ‘small sites.'”

The contract for the architect’s services used language similar to that of AIA Document B 141 (1987 edition), paragraph 4.5, stating that a site survey is to be provided by the owner and that “the Architect shall be entitled to rely upon the accuracy and completeness thereof.” Paragraph 4.9. The plaintiff’s expert acknowledged that under the AIA contract language, the defendant would be entitled to rely on the site survey, and that the AIA language provided no exception for “small sites.” In consideration of the testimony and the contract, the court found that the architect had “an unqualified right” to rely upon the site survey without visiting the site.

Article Copyright  ã 1999, ConstructionRisk.com, LLC – Virginia

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Architect not liable for premises injury without evidence that design violated the standard of care

A jury found an architect liable for the personal injuries sustained by a city employee who fell though the attic floor of the city garage that was designed by the defendant. The flooring was supported by number two pine 2 x 8s. One of them broke under the weight of the city worker due to a large knot that weakened it.

The appellate court reversed the judgment because the plaintiff did not present expert testimony showing that the architect had deviated in its design from the industry standards. Plaintiff argued that the architect should not have specified pine floor joists. His own expert witness testified, however, that number two pine was the most common type of wood used in the construction industry and was standard for loadbearing joists even though they have knots.

Plaintiff’s expert reviewed the calculations that were prepared by the engineer for the defendant architect, and determined that the building code had been consulted by the engineer and that the wood joists included a significant safety factor in their load calculations. Although the expert testified that a knot would weaken the wood, he did not testify that the specifications deviated from the acceptable industry standards. In fact, from his testimony it would be concluded that the engineering calculations satisfied the industry standards. For these reasons, the court found that the jury verdict lacked a rational basis and that the trial court should have granted a directed verdict in favor of the defendant. Columbus v. Smith & Mahoney, P.C. , No. 82650, 1999 N.Y. App. Div. Lexis 2342.

Article Copyright  ã 1999, ConstructionRisk.com, LLC – Virginia

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About This Newsletter

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Disclaimer

This newsletter is distributed with the understanding that ConstructionRisk.com, LLC is not engaged in the rendering of legal services.  Further, the comments in this newsletter are for general distribution and cannot apply to any single set of specific circumstances.   If you have a legal issue to which your believe this newsletter relates, we urge you to consult your own legal counsel.   Any content or opinions expressed by the writers of this newsletter are set forth in their individual capacity and do not necessarily reflect the opinion of any writer’s employer and are not to be attributed to any such employer.

Copyright ã 1999, ConstructionRisk.com, LLC – Virginia