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Design professionals understandably are not fond of phrases like “errors and omissions,” “malpractice” and “professional negligence.” All three phrases are synonymous claims, sounding in negligence, brought against architects, engineers and other design professionals. However, an aggrieved party, without more, cannot assert such a negligence claim by merely reciting a few buzzwords in a complaint.
Rather, a party seeking to recover in negligence — or a specific kind of negligence, such as malpractice — is required to plead and ultimately prove the legal elements of the claim. To state a claim for negligence, (a) the defendant must owe the plaintiff a legal duty, (b) the defendant must breach the duty, (c) the breach must be the cause in fact and proximate cause of the plaintiff’s damages, and (d) the plaintiff had to, in fact, suffer damages.
In recognition of the 50th anniversary of Plumbing Engineer, we look back at a case from 1973 that demonstrates the importance of proving proximate causation in a claim for professional negligence.
In Mississippi Meadows, Inc. v. Hodson, 299 N.E.2d 359 (Ill. App. Ct. 1973), a contractor for an 11-building apartment complex in Rock Island County, Ill., brought a negligence claim against the project architect. The plaintiff-contractor entered into a contract with the property owner, based on plans and specifications prepared by the defendant-architect.
The contractor claimed that it followed the architect’s plans and specifications; however, they had errors and omissions, which required the contractor to make changes in construction. These changes required additional materials and labor for which the contractor was required to pay. Mississippi Meadows, 299 N.E. 2d at 360.
The jury found in favor of the contractor and awarded the plaintiff $30,000. Specifically, the jury found that the architect breached its duty to prepare plans conforming to the property’s existing topography; and comply with local building regulations. As a result of this breach of duty, the contractor was required to provide extra fill and foundation extensions. Mississippi Meadows, 299 N.E. 2d at 360.
The architect filed an appeal as of right with the Appellate Court of Illinois, asserting that the evidence before the jury was insufficient to support a verdict in favor of the contractor. The contractor’s professional negligence claims stem from the same alleged misconduct by the architect: the architect’s negligence in preparing the topography plans submitted to the contractor, which formed the basis of the contract for construction of the project.
To analyze the architect’s claims of insufficient evidence, the appellate court first examined whether the architect breached its duty owed to the contractor. Specifically, the duty in such cases is the duty of care. To meet its duty of care in preparing plans and specifications, the architect is required to exercise ordinary and reasonable skill usually exercised by other architects in that locality. Mississippi Meadows, 299 N.E. 2d at 361.
In other words, the architect is guaranteeing neither perfection nor the “best” set of plans and specifications, and is only held to the standard of reasonable care and skill.
Here, the appellate court found the complaint itself to be deficient by failing to specify facts which set forth the actual error(s) committed by the architect. Furthermore, the complaint failed to specify the sections of the building code(s) that the architect violated in the preparation of its plans and specifications. Mississippi Meadows, 299 N.E. 2d at 361.
Notwithstanding the deficiencies in the contractor’s complaint, the court looked at the trial testimony to understand the facts at issue. The architect had a project surveyor testify that the plans prepared by the architect and submitted to the contractor were consistent with the survey — except the grid points on the survey did not appear on the defendant’s architectural plans. Notably, the court found there was no testimony regarding the significance of including grid points on the plans, and whether such grid points were even necessary.
To determine whether the contractor stated a claim for professional negligence, the appellate court examined the contractor’s allegations in light of the evidence adduced through witness testimony. This examination focused on whether the contractor demonstrated the requisite causation in order to plead a claim for professional negligence:
“The gist of plaintiff’s claim is the topographical plan prepared and submitted by defendant was contrary to the actual topographical facts and defendant’s error in the plan upon which the plaintiff relied caused plaintiff to be required to provide more fill than would have been the case had not the error occurred. Even if the grid points of the surveyor were not included in defendant’s topographical plan, the question remains whether the defendant should have included such points. In other words, were such points necessary to enable the plaintiff or any other contractor to determine how much fill, if any, was required? [T]he question of necessity has a peculiar application in this case. If the grid point specifications were unnecessary, it would follow that the failure to include such points could not have proximately caused plaintiff’s alleged damages and the failure of defendant to include such points could not support an inference of negligence. However, even if the specification of grid points was necessary to determine the amount of fill required, the question immediately arises as to how plaintiff could have or did determine the amount of fill required, if the plan did not contain the information which plaintiff now asserts is essential to such determination …. Although there is substantial evidence of the amount of fill and concrete work which plaintiff provided, there is an entire failure of evidence regarding how much fill, if any, would be required based on the plan as submitted …. [P]laintiff has failed to show his calculations or estimates of the amount of fill which would be required were in any way adversely affected by the alleged error in the plans.”
Mississippi Meadows, 299 N.E. 2d at 362.
This, my plumbing engineer friends, is the contractor failing to prove proximate causation — the architect’s failure to include grid points on its plans was the proximate cause of the contractor having to order more fill than initially anticipated. This failure to prove an essential element of a claim for professional negligence is fatal to the contractor’s case.
The appellate court found that the evidence adduced at trial is insufficient as a matter of law to support the jury’s verdict. As a result, it reversed the judgment of the trial court and found in favor of the architect.
In addition to being able to prove a duty, a breach thereof and damages, a claimant in negligence must be able to prove actual cause — or cause in fact — as well as proximate cause. Actual cause is the direct cause or “but for” cause of the event. Proximate cause refers to the primary cause that essentially set everything in motion. It is based on foreseeability.
Here, the architect’s failure to include the grid points may have been the actual cause of the contractor’s damages. However, as the Appellate Court of Illinois pointed out, this failure was not proven to be the proximate cause of the contractor’s damages. In other words, it was not reasonably foreseeable that the architect’s failure to include the grid points on its plans would result in the contractor needing more fill than originally projected.
Regardless of whether we are discussing professional negligence or ordinary, garden-variety negligence, the elements of the cause of action are the same. If the claimant fails to prove both types of causation, it will not succeed in recovering any damages allegedly sustained. Although these takeaways from Mississippi Meadows are not groundbreaking, they are fundamental and as important for negligence claims today as they were in 1973.