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As a result of a fatal accident that occurred when a car hit a low median separating traffic on a highway overpass bridge and vaulted over it into oncoming traffic, plaintiffs filed suit against the engineering firm that had years earlier performed professional services involving the bridge.  Pursuant to a contract with a developer, the engineer performed improvements to the public roads, and bridge, as part of its client’s development of a shopping mall.  Although the engineer, CH2 M Hill, had complied with the contract by designing a replacement deck equivalent virtually the same as the one that was replaced, the plaintiff argued the engineer owed it a duty and failed in that duty.

Specifically, the plaintiff asserted that the engineer was negligent for not to do a median barrier analysis, not considering the necessity of crossover protection on the bridge deck, and not including a Jersey barrier in its design to separate the traffic.   Because the contract did not require median barrier analysis or design, the engineer argued it met the requirements of its contract and owed no independent duty to the plaintiff to perform analysis or design services going beyond what was called for by the contract.  The trial court granted summary judgment for the engineer, which was reversed by the intermediate appellate court, and ultimately reinstated by the Illinois Supreme Court.

The supreme court decision held that the contract set forth the standard of care as “the degree of skill and care and diligence normally employed by professional engineers or consultants performing the same or similar services.”  (Emphasis added by the court).   Based on this contract language, the court held “the standard of care was limited to the degree of skill and diligence normally employed by professional engineers performing the same or similar services, namely, replacing the bridge deck — [and] replacing the bridge deck did not include improving the bridge deck or considering or adding a Jersey barrier.”  For these reasons, the court found the appellate court incorrectly permitted the plaintiff’s expert witness affidavit to attempt to raise a question of fact whether the engineer’s standard of care required it to improve the bridge to include a Jersey barrier.

The court concluded that the scope of the engineer’s duty is defined by the contract between it and its client and that the question of whether the standard of care is met is appropriately addressed on summary judgment motion rather than permitting expert testimony to be considered by a jury as a fact question to decide whether the expand the engineer’s services and duties beyond stated on the face of the contract.  Corrine Thompson v. Christie Gordon, (N. 110066, Sup. Ct. Illinois, January 21, 2011).

In this case the Illinois State Highway Toll Authority, which owned the highway overpass bridge in question, had to approve any change to the road and bridge, did in fact approve the plans and issued  a permit for the work to commence following the engineer’s design.  The work was completed in 1991 or 1992.  The accident at issue occurred in 1998 – approximately 7 years later.

At trial, in response to the engineer’s motion for summary judgment, the plaintiff filed an expert witness affidavit that maintained the defendants failed to meet the ordinary standard of care.  In particular, the expert asserted that the defendants should have considered and analyzed all available data provided by their consultants; considered crossover protection; and submit to IDOT for its consideration the necessity of crossover protection in the form of a Jersey barrier; and should have but failed to design a Jersey barrier.   He also testified that crossover accidents were likely to occur and that if the defendants had designed for a Jersey barrier it would have prevented the car from flipping over the median into the oncoming traffic.

The trial court granted the motion for summary judgment in favor of the defendant, engineer stating that the engineer’s duty to the plaintiff was circumscribed by the terms of the contract the engineer had entered into with its client and that the scope of the engineer’s work was determined by its contractual undertaking.  As explained by the Illinois Supreme Court:

“The trial court observed that the contract did not call for an assessment of the sufficiency of the median barrier specifically.  Rather, the contract simply required the defendants to reconstruct the raised median and road surface.  The trial court concluded that to impose an obligation on defendants to perform a median analysis, as if the contract called for a redesign of the roadway or a raised median, would impose an obligation on defendants that was not specified in their contract.”

Ironically, when the intermediate appellate court reviewed the trial court reasoning, it agreed that when given its most logical meaning, the contract required the engineer “to submit plans to rebuild the bridge deck and median exactly as it already existed.”  The appellate court, however, then found that the standard of care clause in the contract added an important qualifier to the engineer’s work – i.e. that the engineer was required to act within the prescribed standard of care – and this meant that the engineer had to a duty to its client to submit plans to replace the bridge deck in the same configuration as existed before the construction project, but also to perform its contractual task using the degree of skill and diligence normally employed by professional engineers.

Next, the appellate court, having found a duty of care imposed by the contract, decided that the plaintiff had presented sufficient evidence through its expert witness to allow the matter go forward to a jury to decide as a question of fact whether the engineer had met its duty.   This is where the Illinois Supreme Court found the appellate court went wrong in its analysis.  The supreme court agreed with the engineer that its duties were confined to those explicitly stated in the contract and should have been decided as a matter of law as done by the trial court rather than allowing expert testimony to attempt to expand the duties beyond what was called for by the contract.  For these reasons, the court reversed the appellate court decision and affirmed the trial court decision that had granted summary judgment for the engineer.

Comment: This is a well-reasoned and very important decision.  The logic of this decision can be applied to many cases involving questions concerning standard of care, where there is a written contract clearly specifying the scope of services and including a generally accepted standard of care provision such as the one in this contract.  The standard of care language in the contract at issue is similar to the standard of care language in the AIA B 101 Owner-Architect Agreement.  It is likewise the standard that courts historically would impose on professionals in the absence of a contract.   Those who are counseling design firms on their contract language will want to keep a copy of this decision close at hand as a useful tool to help reiterate their design professional clients how important it is to get the standard of care language in a contract right.  The example as I use as what I call the “gold standard” is the new AIA B101, section 2.2 that provides as follows:

“The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances.  The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.”

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About the author: Article written by J. Kent Holland, Jr.,  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 founder and president of a consulting firm, ConstructionRisk, LLC, 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, Vol. 13, No. 2 (February 2011).