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Court rulings expand design firm liability 2 Superior Court decisions might affect firm liability in Pennsylvania; awareness of these cases and potential impact could save firms trouble. O P I N I O N
P ennsylvania’s Superior Court issued two opinions in recent months that might have a significant impact on design firm liability. Notably, this court has great influence over Pennsylvania’s entire judicial system, including the courts of common pleas – the venue for most civil litigation, including suits against design firms based or doing work in Pennsylvania.
Rob Hughes
DESIGNING TO CODE MIGHT NOT PROVIDE ADEQUATE PROTEC- TION. The first opinion, Truax v. Roulhac, involved a bodily injury claim sustained by a pedestrian struck by a car as she walked along a sidewalk outside a local bar. The driver, intoxicated at the time of the accident, was trying to park near the bar when her car jumped the curb. The pedestrian filed suit against the business owner for damages related to her injuries. The trial court dismissed the claims against the bar, stating: “No Pennsylvania court has held that a business owner was negligent for failing to install vertical bollards in addition to horizontal wheel stops.” The standard of care was met because the design “complied with all applicable building codes and zoning ordinances, and to impose a duty upon property owners above and beyond these standards would defeat the purpose of having such standards in the first place.” The Superior Court disagreed and found the bar owners potentially negligent. The court’s rationale was that because the building protruded slightly at the site of the accident, pedestrians were left exposed to the potential threat of a car jumping the curb. Thus, the owner provided inadequate protections and was obliged to take additional precautions. The court went on to note that the adequacy of the precautions was not definitively established by showing that the design met applicable building codes. Simply put, more was required of the building owner (and, by extension, of any design engineer working on plans for this property). Although this case did not involve a design firm, the opinion could leave design engineers exposed to significant liability, even when their design meets all applicable codes. The designer must be able to proactively identify potential areas of “greater concern” for safety and design above and beyond the standards at these locations (while presumably convincing the client to pay for these additional costs).
RULING ERODES PENNSYLVANIA’S ECONOMIC LOSS DOCTRINE. The second opinion – Gongloff Contracting L.L.C. v. L. Robert Kimball & Associates, Architects and Engineers Inc. – further erodes Pennsylvania’s interpretation of the economic loss doctrine. That doctrine prohibits direct claims against design professionals for purely economic damages, absent privy of contract. In this case, Gongloff was the structural steel erector on a convocation project designed by Kimball for California University of Pennsylvania. Gongloff sued Kimball directly for additional costs incurred because of errors in Kimball’s design documents, allegedly resulting in significantly undersized roof trusses. Readers might recall the 2005 Bilt-Rite opinion, which opened the door in Pennsylvania to direct claims based on negligent misrepresentation. This case broadens Bilt-Rite by answering two questions adversely with respect to the design community: (1) Must the design professional make an explicit negligent misrepresentation of a specific fact to a third party? (2) Did Kimball either “expressly or implicitly” represent that the structure could safely sustain all required in situ loads? Kimball argued that absent this specificity, no direct claim could be maintained and the trial “Design firms operating in Pennsylvania might want to check with their legal counsel on the feasibility of requiring the owner to include a waiver of direct claims against the design team in their prime agreement with the contractor. This might help limit your direct exposure.”
See HUGHES, page 10
THE ZWEIG LETTER JANUARY 11, 2016, ISSUE 1134
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