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Whenever people are injured or killed, the courts are known to work overtime in an effort to make the injured parties whole, even if it means a sweeping change in the law. And that's exactly what has happened in Illinois, thanks to an appellate court's ruling in Thompson v. Gordon, et al., (2009 WL 3969619 (Ill. App. 2 Dist. 2009)). The case arose from a contract the defendant engineering companies ("defendants") signed, calling for them to design a roadway interchange and a bridge-deck replacement in connection with a shopping-mall project. The defendants' designs for the bridge-deck replacement included a four-foot-wide-by-seven-inch-tall median (the original median was four feet wide by six inches tall). In November 1998, well after construction was complete, a vehicle traveling eastbound on the bridge went out of control, hit the median, became airborne, and hit the westbound vehicle carrying the plaintiff's husband and daughter; both died. The plaintiff, individually and as administrator of her husband's and daughter's estates, sued the defendants, claiming they were negligent for simply copying the original median design as opposed to specifying a Jersey barrier "that would have prevented the eastbound vehicle from becoming airborne and causing the accident." The plaintiff based her argument on her expert civil engineer's testimony that, had the defendants met the standard of care, they would have recognized the vaulting characteristics of the existing median and would have notified their client that the median they were designing was dangerous. A trial court granted the defendants' motion for summary judgment, ruling that the contract controlled the defendants' duties and "'did not call for an assessment of the sufficiency of the barrier' and '[did] not require the defendants to modify or redesign the road surface or the raised median,' but instead indicated that, '[t]he road surface was to be removed and replaced by others without modification of the existing design.'" The plaintiff appealed and the Illinois Appellate Court reversed the trial court. It concluded that the clause requiring the defendants to employ "the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services" - which, restated, merely required the engineers to meet the standard of care they were legally obligated to do in any event - somehow added an important qualifier to the defendants' obligations, imposing on them a duty to "go beyond the specifically mentioned task of replacing the bridge deck and to ensure that the replacement was safe." The defendants had also argued that the state's review and acceptance of their design proved they did not breach a duty, but the court rejected that argument. It said that the state's minimum standards are not equivalent to the professional standard of care required. A dissenting judge described the majority's action as a "strained effort to reach a predetermined result," which - given the loss of life involved - it might have been. But that doesn't matter; the law's the law and, applying the same reasoning as the Thompson v. Gordon, et al. majority, courts in other jurisdictions could interpret duty of care to require engineers and others to evaluate their work for safety and notify the client when they believe more needs to be done. What happens if a client says, "Just do what I tell you"? That remains to be seen. Clearly, however, this decision could make you liable for safety whether or not you perform a review and whether or not your design meets state requirements. As such, you might be well-advised to make a safety check part of routine procedures when appropriate and call to the client's attention - in writing, of course - the need to do more. Check with your attorney and/or your PL insurer for additional guidance. |
