The Design and Construction Management Professional Reporter: August 2006

Inside this Issue

Structural Engineer Not Liable For Injuries Caused By A Dangerous Construction Technique Where Contract Provisions Disclaim Liability And The Design Did Not Require Means And Methods Of Construction

By Daniel C. Poteet, Esq.

In Macinnis v. Walsh Brothers, Inc., 20 MASS. L. RPTR. NO. 28, 635 (May 15, 2006), the Middlesex County Superior Court granted the defendant structural engineer’s motion for summary judgment against negligence-based claims of wrongful death and injury asserted by the estate of a worker killed by a falling steel beam at a construction site. The court found that the design professional owed no duty to the construction worker. In reaching its conclusion, the court relied principally on the contracts between the engineer and the project architect, between architect and owner, and between the owner and general contractor. The court also considered the extent to which the structural steel design required special construction methods.

Ohio Appellate Court Distinguishes Spearin Doctrine And Reverses Award Of Delay Damages To Lead Contractor

On July 28, 2005, on Ohio Appellate Court issued a ruling implicating long-established delay damages principles and altering the teachings of the Spearin Doctrine. In Dugan & Meyers Construction Co., Inc. et al. v. State of Ohio Department of Administrative Services, et al., 162 Ohio App. 3d 491 (2005), the Tenth District Court of Appeals reversed in part and remanded the decision of the Court of Claims, holding that proof of numerous contractor requests for information may be insufficient to support a contractor’s recovery of delay damages where the contractor fails to provide an identifiable design defect.

Tolling Of The Statute Of Limitations For Professional Malpractice Actions In New York: The Continuous Representation Doctrine

The Supreme Court of New York, Appellate Division, Third Department, recently applied the continuous representation doctrine to toll the statute of limitations in a professional malpractice action against an engineering firm in favor of the firm’s client.

Design Specifications Are A Matter Of Professional Judgment And Do Not Trigger An Action In Negligent Misrepresentation

By Douglas M. Marrano, Esq.

In a negligent misrepresentation claim against an architect arising out of a construction project, the Superior Court of Massachusetts recently found that the plaintiff could not assert a negligent misrepresentation claim when the statements at issue were not based on facts susceptible of actual knowledge, but were merely a matter of professional judgment.

Court Of Appeals Of Georgia Re-Affirms The Viability Of The Negligent Misrepresentation Exception To The Economic Loss Rule

Relying on the negligent misrepresentation exception to the economic loss rule, the Court of Appeals of Georgia in Mactec Engineering and Consulting of Georgia, Inc. v. City of Cairo, 2006 Ga. App. LEXIS 365, at *1 (Mar. 28, 2006), recently affirmed recovery argument of a design professional arising out of deficiencies in a wastewater treatment facility.

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