- Pennsylvania Courts Remain Engineer-Friendly, for Now
- December 20, 2003 | Author: Michael Yablonski
- Law Firm: Meyer, Unkovic & Scott LLP - Pittsburgh Office
The Pennsylvania Superior Court continues to throw legal obstacles into the path of contractors and construction workers who attempt to bring negligence or other tort claims against architects and engineers. But the more liberal treatment of such claims in other states could eventually influence Pennsylvania jurists.
Last February, the Superior Court dismissed a contractor's claims against a project's architects and engineers in David Pflumm Paving & Excavating, Inc. v. Foundation Services Company, holding that the law does not permit a contractor to recover extra costs it incurred as a result of faulty information in a foundation report. The decision leaves engineers batting a perfect two for two in the new millennium. Two years earlier, the Superior Court also dismissed an injured construction worker's negligence claims against the project engineers in Herczeg v. Hampton Township Municipal Authority.
In the Pflumm case, an excavation subcontractor sued several architectural and engineering firms that performed the subsurface testing and design work for a new library. The subcontractor based its bid on the engineers' geological report and incurred substantial additional expense in removing large quantities of rock that were not shown in the report. The subcontractor's complaint included claims for negligence, negligent misrepresentation, and fraudulent misrepresentation.
The Superior Court affirmed the dismissal of the subcontractor's claims on the basis of the economic loss doctrine, which "precludes recovery in negligence actions for injuries which are solely economic." The contractor argued that its suit should be permitted under the authority of the Restatement of Torts, an authoritative national treatise on tort law. The Restatement's section on negligent misrepresentation includes an example in which an engineer who prepares a faulty geotechnical report for a city would be liable to a contractor where the city provided the report to contractors for use in preparing their bids.
The Superior Court said it would "have no particular disagreement with a finding of liability" under the circumstances given in the Restatement example. In the Pflumm case, however, the bid instructions disclaimed the accuracy or completeness of the foundation report, warned bidders not to rely on it, and advised them to conduct their own investigation of subsurface conditions.
Curiously, the Pflumm decision cited but did not rely on another Superior Court decision a dozen years earlier holding that the absence of privity, or a direct contractual relationship, bars a contractor's claims against a project's design professionals. In that case, Linde Enterprises v. Westmoreland Engineering Co., the court noted that "several states have allowed a contractor to sue an architect for economic damages suffered by the negligent drafting of design specifications despite the absence of privity. However, Pennsylvania is not one of them."
The Pflumm court's decision to dismiss the suit on the basis of the economic loss doctrine may signal reluctance by current court members to consider the absence of privity as an absolute defense to a contractor's tort claims against design professionals. That would be troubling for the profession because the economic loss doctrine provides less protection against such suits. Under the express language of the Pflumm decision, the economic loss doctrine would not have shielded the engineers from liability without the disclaimers in the bid instructions. And the doctrine does not bar negligence claims for non-economic damages like the personal injuries at issue in the Herczeg case.
In Herczeg, the family of a construction worker killed in a trench collapse sued the engineers for negligence. The family alleged that the engineers took no steps to warn workers or correct a dangerous situation even though they knew that the trench contained no shoring, which violated their own project specifications, federal law, and industry practices.
In dismissing the suit, the Superior Court held that actual knowledge of a dangerous situation is not enough by itself to impose a duty on engineers to protect workers on a project. "The courts of this Commonwealth have consistently refused to impose a duty on design professionals to protect workers from hazards on a construction site unless there was an undertaking, either by contract or course of conduct to supervise or control the construction and/or to maintain safe conditions on the site."
The Herczeg and Pflumm cases represent important favorable decisions for design professionals, but they should be viewed as silver clouds with a dark lining. In Herczeg, the court noted but refused to follow the lead of courts in other states, including New Jersey, that have allowed similar claims. Likewise, the Pflumm case stands in stark contrast to a decision seven months earlier by the West Virginia Supreme Court in Trafalgar House Construction, Inc. v. ZMM, Inc. That case involved facts very similar to the Pflumm case, but the court permitted the contractors to proceed with their lawsuit against the project architects and engineers.
Neither the Herczeg nor the Pflumm cases were appealed further to the Pennsylvania Supreme Court, which has the final say on state law. The Supreme Court has not addressed the issue of architect/engineer liability in a number of years, although it is presently considering a statute of limitations question in a project owner's suit against a number of architects, engineers, and contractors for alleged defects in the design and construction of a shopping mall.
Trial courts faced with similar issues are bound to follow the Superior Court's holdings in Herczeg and Pflumm. The Supreme Court is under no similar restriction, and it is uncertain whether the high court would agree with the rationale of those decisions, especially in light of contrary decisions in other states and the authority of the Restatement of Torts. The Pennsylvania Supreme Court historically has shown great deference to the Restatement in deciding legal issues that had not previously come before it.
For the moment, engineers can take comfort from the state's recent court decisions affecting their profession, but they would be wise to continue paying the premiums on their insurance policies. Like many cases, the Superior Court's decisions in Herczeg and Pflumm are full of exceptions, and the law is always subject to change in some future case.