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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  1999, ConstructionRisk.com, LLC – Virginia

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. 1, No. 1 (April 1999).