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A plaintiff’s expert witness was challenged by the defendant on the basis that the expert’s testimony failed to adequately demonstrate that there was a consensus within the architectural community for the standard of care that he asserted applied in the case. The essence of his testimony was that when an architect is retained by a prospective home purchaser to provide an evaluation of the property, he must call in a structural engineer if he observes a condition that involves structural failure and settlement.

The underlying facts of this dispute involve a professional opinion provided by an architect on behalf of a property purchaser advising that despite observable defects, including significant cracking and settlement, the house was structurally sound. After purchasing the house in reliance on the report, the homeowner subsequently experienced substantial structural problems, and sued the architect for malpractice. The architect moved for summary judgment on the basis that Plaintiff’s expert failed to adequately demonstrate the applicable standard of care. The trial court denied the motion. On appeal, the court agreed with the trial judge that the expert testimony against the architect was satisfactory because it was not based merely on personal opinion, but instead indicated with reasonably clarity that the consensus of architects was that when confronted with substantial structural defects, the standard of care was to recommend that an engineer be consulted.

The expert had been asked whether there was any written standard establishing a consensus of the architectural community to support the expert’s opinion. He responded that he did not know of any such written standard. A question was then asked of him as follows: “Do you have a consensus held amongst the architectural community, an unwritten standard that supports your opinion? His answer was “Well, other than an architect is a generalist. And when you get into issues that are more specific, you hire an expert. And you know, in this case with substantial settlement in a building, it clearly required input by a structural engineer or soils engineer.”

In opposition to the motion for summary judgment, the plaintiff argued that although their expert did not cite any written authority in support of his opinion, his testimony “relied on the unwritten custom or practice indicating a consensus on an architect’s duty in the circumstances of this case.” As explained above, the court agreed that the testimony was sufficient to overcome the summary judgment motion. Vitale v. Seibert, 2009 WL 4724861 (N.J Super. 2009 – unpublished).

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.