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A Court of Appeals in Texas ruled that expert testimony is required to establish the standard of care of a construction management firm since a lay person would not have sufficient knowledge of the duties of a construction management firm. Judgment was entered for the construction management firm as no expert testimony was put forth to establish its liability.

Facts and Allegations

The owner of an apartment complex, brought suit against 3D/I, a construction management firm, when water overflowed from a temporary retention pond and caused damage to the apartment complex. 3D/I contracted with the County of El Paso, Texas to “supervise, direct, and manage the complete construction” of an annex building and retention pond. The Contract did not extend the responsibilities of 3D/I to include constructing or designing the retention pond, only to supervising the contractor tasked with its construction.

The provisions in the Contract limited the duties of 3D/I to scheduling work and funding, reviewing design documents to ensure compliance, making recommendations to the County regarding construction, and guarding against defects and deficiencies. The contract contained a clause that determined the liability of 3D/I based on “standards and quality prevailing among first-rate, nationally recognized design/construction management firms of knowledge, skill and experience engaged in projects of similar size and complexity.”

At trial, the Plaintiff put forth expert testimony that determined the drainage pond was responsible for the flooding. However, no expert testimony was put forth to determine the standard of care that 3D/I needed to exercise as a construction management firm; thus, 3D/I moved to have the case dismissed. 3D/I argued that a lay person without the guidance of expert testimony would not know the role of a construction management firm, and therefore, could not determine liability. The Trial Court denied the motion and ruled that no such expert testimony was necessary. This was reversed on appeal in the case of 3D/I + Perspectiva v. Castner Palms, Ltd., 310 S.W.3d 27 (Court of Appeals of Texas 2010)

When Expert Testimony is Necessary

Expert testimony is required where the “alleged negligence is of such a nature as not to be within the experience of the layman.” If an ordinary person would not be familiar with the equipment or techniques used, then expert testimony is required. In this case, 3D/I argued that since its duties were limited to supervising work as stated in the plans, expert testimony was required as a lay person would not know what duties a construction management firm might extend to.

The appellate court in this case stated it could not conclude a layman would have knowledge of whether a construction management firm’s responsibilities extend beyond mere supervision. While a jury could determine the pond was negligently built, specialized knowledge is required to determine whether the supervisory duties extend beyond merely ensuring the plans were built to specification. Additionally, even if the appropriate standard of care were specifically stated in the Contract, expert testimony would still be required to establish the standard of liability for construction management firms.

About the author: J. Kent Holland is a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is also founder and president of ConstructionRisk, LLC, a consulting firm providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report.

About the author: J. Kent Holland is a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is also founder and president of ConstructionRisk, LLC, a consulting firm providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report.