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/).

Today, the Supreme Court rectified the appellate court’s errant analysis. A copy of the Supreme Court’s decision can be accessed here through the court’s official website: http://www.state.il.us/court/Opinions/SupremeCourt/2011/January/110066.pdf

The case involves a construction engineer who signed a contract to “replace” a bridge. A motorist traveling through the section of replaced bridge was killed in an accident. Her estate sued the engineer alleging he should have done more than just “replace” the prior bridgework but should have improved it to add better median barriers which might have prevented the death.  The appellate court ruled (1) the scope of services section of the construction contract only required “replacement” of the bridge (not improvement), but (2) the portion of the contract which required the engineer to meet professional practice standards raised a question of fact as to whether he should have also suggested and implemented “improvements” to the bridgework.

The Supreme Court ruled that the appellate court was incorrect in determining the scope of the duty by applying a professional negligence standard of care duty, even though the actual scope of the engineer’s duty was contractually established as mere replacement of the prior bridgework. Although the contract indicated the engineer would apply the same skills as other engineers, the Supreme Court held the skill was only that which would be applied to the scope of the contract work, namely the “replacement” of the bridgework (not its improvement).

Importantly, the Supreme Court reinforced its earlier ruling in Ferentchak v. Village of Frankfort105 Ill. 2d 474 (1985). Here, the Court stated that Ferentchak‘s “actual holding … was that the degree of skill and care required of the civil engineer depended on his contractual obligation, and the scope of that duty was defined by the contract.”

This Supreme Court decision  which developed after the appellate court’s ruling. They were concerned about being held liable for work which was done completely according to contractual requirements, but which an “expert” would criticize after the fact as not having been enough in spite of complying with the contract.

Now, with this decision, it seems clear that courts addressing claims against construction entities must first determine the scope of the services contracted for, and second, determine if the work done only on that scope of services was done properly.

This is a good decision which reestablishes long-held law, clarifies the analysis to be used by trial courts, and allows construction entities to have more certainty about the litigation risks to which they might be exposed.

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