Open-Ended Liability for Contractors/Engineers?

 NOTE: SEE POST OF JANUARY 21, 2111 FOR THE UPDATE ON THE SUPREME COURT’S RESOLUTION OF THIS ISSUE. THE SUPREME COURT REVERSED THE APPELLATE COURT’S HOLDING DISCUSSED BELOW.

A controversial appellate court decision which included an especially aggressive dissent (not to mention a modified opinion issued three months after the first opinion) has been accepted by the Illinois Supreme Court for further review. The case is Thompson v. Gordon, ___ Ill. App. 3d ___ (2d Dist. No. 2-07-0667 February 3, 2010). A copy of the decision as made available on the Illinois courts’ official website can be accessed here:
http://www.state.il.us/court/Opinions/AppellateCourt/2009/2ndDistrict/November/2070667.pdf 
This personal injury case came to the appellate court on a motion for summary judgment filed by a defendant construction engineer who asserted it was only required to implement the contractual plans and specifications. The plaintiff sued the engineer on a bridge replacement job for failing to include a median barrier in the rebuilt bridge lanes. Plaintiff alleged that if a median barrier had been provided, the decedents would not have gotten into the accident which killed them. The contract for the engineer did not ask it to add median barriers and the contract merely sought replacement of the original work. Plaintiff presented an engineering expert who testified that that the defendant engineer owed a duty beyond the terms of the contract to consider other safety issues. The trial court granted summary judgment to the defendant engineer by ruling the engineer owed no duty under the contract to do a complete redesign of the bridge, but rather only to replace it.

In November, 2009, the majority opinion from the appellate court reversed the summary judgment to the defendant finding there to be a question of fact as to whether the defendant owed a duty beyond the contract. The construction contract stated the engineer was to use “the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services” and requires the engineer “to act within the prescribed standard of care.” The court concluded that as a result of these contractual terms, the engineer “owed a duty to perform that contractual task using the degree of skill and diligence normally employed by professional engineers.” Accordingly, in determining whether the defendant engineer owed a duty to do a certain thing under the contract, the court must also consider evidence outside of the contract, such as an engineer’s expert affidavit indicating what was required under the professional standard of care (regardless of what was in the contract). Thus, the court concluded that the defendant engineer’s motion for summary judgment should have been denied as there was an issue of material fact as to the scope of the defendant engineer’s duty.

The court distinguished the Supreme Court’s decision in Ferentchak v. Village of Frankfort, 105 Ill. 2d 474 (1985), as a case which holds only that a defendant engineer will not be held responsible for obligations outside of the contract where that contract specifically indicated the engineer was not to be involved in the other work and it would not have been possible for the engineer to have done the other work. In this case, however, unlike the engineer in Ferentchak, the engineer defendant was “charged with designing precisely the object (the median barrier) that plaintiff claims was defective … and also unlike the engineer in Ferentchak, had full knowledge of all relevant aspects of the allegedly defective design.” The court also distinguished the doctrine of Hunt v. Blasius, 74 Ill. 2d 203 (1978) that an independent contractor or engineer owes no duty to a motorist to utilize his judgment in exercising reasonable care in the design, construction, and installation of roadway features when the State of Illinois’ specifications are not so obviously dangerous that no competent engineer would follow them. Here, the Court stated that the plaintiff’s engineering expert’s affidavit qualified for the exception to Hunt v. Blasius that an independent contractor cannot follow others’ designs when they are so obviously dangerous that no competent engineer would follow them because the affidavit said the defendant should have done something different under the professional standard of care.

The supplemental opinion filed by the court on February 3, 2010, denying the defendant’s motion for rehearing, included new emphasis by the majority opinion that its decision merely holds that summary judgment cannot be granted because there is a fact question as to whether the engineer had a duty which extended beyond the terms of the contract, as identified by plaintiff’s engineering expert.

This opinion had an aggressive dissent which indicates that the question of duty is a question of law to be decided by the court and is not subject to a fact issue. The dissent stated that, as a matter of law, the engineer defendant’s duty was only as provided in the written contract. It further noted that long established Illinois law concludes a party has no duty beyond the words of the contract and that the majority’s opinion improperly imposed such an extra-contractual duty.

The appellate court decision caused shock waves in some parts of the construction industry which feel the appellate court’s holding opens engineer’s and contractors to new liability not anticipated by the contract documents. Let’s hope the Illinois Supreme Court resolves the issues raised by this decision.

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One Response to Open-Ended Liability for Contractors/Engineers?

  1. […] Supreme Court Rectifies “Open-Ended Liability” For Construction Contractors and Engineers On January 21, 2111, the Illinois Supreme Court handed down its unanimous decision in Thompson v. Gordon. The Court reversed the holding of the appellate court. I previously commented on the appellate court’s decision, noting the appellate court misapplied the law which sets forth duties of construction entities, and I expressed my hope the Supreme Court would resolve the issues raised by the appellate court’s decision. (See https://triallaw.wordpress.com/2010/06/02/open-ended-liability-for-contractorsengineers/). […]

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