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Where a pedestrian sued a city and its engineering consultant for negligent design and construction, and failure to warn of a dangerous condition in a sidewalk, a court held that the engineer was entitled to summary judgment.  This was because the plaintiff did not present expert testimony on the professional standard of care, and the evidence did not establish a duty of the engineer to warn of a dangerous condition.

In the case of Luther v. City of Winner and Dan Britton, 674 N.W. 2d 339, 2003 WL 23137692 (South Dakota, 2004), the renovations for Main Street that was designed by the city’s engineer included changing the sidewalk and curbs to correct drainage problems caused by the fact that one side of the street was two feet higher than the other. The engineer changed the sidewalks in front of several stores to create a six inch step in the sidewalk, in addition to the curb.   As a result of this change, a customer would walk out of a store on a level surface, and after walking about ten feet toward the street, the customer would encounter a sex step down the middle of the sidewalk.  After walking another four feet, the customer would reach the street.  Unfortunately, one customer, Donald Luther, fell on the step in the middle of the sidewalk and was hurt. He had climbed up the step while going into the store but says he forgot it was there when leaving.  Apparently there was no handrail or marking on the step or sidewalk to indicate that there was a step.  There was some indication that the step had been painted a bright yellow at one time but that the paint had worn off over the years.

In his case against the engineer, the plaintiff failed to present expert testimony concerning the standard of care that was owed by the engineer. Instead of expert testimony, the plaintiff presented testimony (mostly hearsay) that several other people had fallen in the same area.   The court found that expert testimony was required to show what the standard of care was and that the engineer failed to meet the requisite standard.  As explained by the court, expert testimony is required if the standard of care is not within the common knowledge of the jury.  Only when a layperson would know based on their common knowledge that a professional service was negligent does it become unnecessary to have an expert.  An example of such common knowledge of negligence would be where a surgeon cuts off the wrong leg of a patient.  On the other hand, says the court, if there was a question whether the surgeon correctly performed a complicated surgery, an expert may be required.

Litigation Comment: This case once again demonstrates the importance in obtaining expert testimony to (1) establish the standard of care and (2) to prove that a design professional failed to meet that standard.  In most claims against professional service providers for negligence, the types of questions for consideration by the jury go beyond the kind of common knowledge that a layperson would have as to whether the services were negligently performed.  The number of cases like that of a surgeon cutting off a wrong leg being subject to a common knowledge determination of negligence are not nearly as common as the more subtle determinations that typically arise concerning whether a design professional exercised his or her services consistent with the generally accepted standard of care for similar services performed by similar professionals.  When filing a suit based on professional negligence, some states require an affidavit by an expert be attached to the complaint.  Even where such an affidavit is not required, however, courts may dismiss a case for failure to present expert testimony.  Moreover, even when a plaintiff believes the negligence is so obvious that it can be proved by lay testimony to the common knowledge of a lay person, it still may be most prudent to submit expert testimony rather than risk a court finding, as this court did, that the alleged negligence was not within a layperson’s ability to determine without an expert.

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. 6, No. 5 (Jun 2004).

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