Expert Testimony Needed To Prove Inadequate Conduct

Facts of the Case

New England Building & Bridge Co., Inc. (NEBB), sued the town of Cohasset, Massachusetts ("the Town"), alleging damages related to a dam rehabilitation project. The rehabilitation required NEBB to construct a cofferdam, drainage bypass system, and dewatering of the area adjacent to the cofferdam. This work required the installation of piping to drain the water away. The contract specified the use of a 30-inch diameter pipe to ensure adequate drainage.

NEBB alleged the 30-inch diameter pipe was grossly insufficient and caused NEBB to expend additional effort to address the resulting problems. NEBB and the Town consulted an outside engineering firm, and that firm concluded there was a problem with the hydraulic calculations and modeling used by the project engineer, CDM Smith ("the Engineer").

Because of the outside engineering firm's conclusions, the Town sued the Engineer seeking indemnification for the Town's liability to NEBB arising out of the Engineer's negligence, recklessness, or intentional misconduct. As the trial approached, the Engineer moved for summary judgment. ¹

The Engineer presented evidence that the Town and the Engineer entered an engineering contract that required the Engineer to perform design and construction administration service for the Town to repair the Bound Brook Bridge. That contract contained an indemnification provision under which the Engineer had to indemnify and hold the Town harmless against all claims, demands, etc. to the extent the claims arose out of the negligent acts, errors, or omissions or the reckless or intentional misconduct of the Engineer.

The Town alleged the Engineer should indemnify it. However, the Town failed to specify acts of negligence by the Engineer. The Town simply referenced the allegation of NEBB's complaint claiming certain elements of the project's design were deficient.

The Court's Analysis

To obtain indemnification, the Town was required to show that the NEBB's claims resulted from the Engineer's negligent acts, errors, or omissions in the execution of its work for the Town. This is required by the plain language of the contract.

The Engineer argued that the Town failed to present evidence to show the Engineer was negligent. In response, the Town argued it was not seeking to recover for its own affirmative negligence claim, but rather, it was seeking indemnification. The Town argued that the NEBB's allegations of negligence and the NEBB's expert witnesses supported the Town's allegations against the Engineer.

The court focused on whether the Town adduced sufficient evidence that the Engineer was negligent in specifying a 30-inch pipe called out in the design and in assuring NEBB that a 30-inch pipe was sufficient. The court concluded that whether a reasonable engineer would have recommended the use of a 30-inch pipe rather than a larger pipe in the system was not a matter to which a lay jury could apply its common sense to recognize or infer negligence.

The Town argued that if expert testimony was needed, then NEBB had offered that. NEBB's expert would testify that the cofferdam system was designed and installed per the Engineer's requirements and that the design was insufficient for the actual project conditions.

However, the testimony of NEBB's own engineer did not address the standard of care for a reasonable engineer. Simply because the Engineer's specification did not match the actual field conditions did not establish negligence. NEBB had evidence from its outside engineer that concluded there was a problem with the hydraulic calculations and modeling. However, there was no evidence from which a lay jury could determine how much water needed to flow out of the area or how much water a reasonable engineer would have accounted for.

The court pointed out that the fact the 30-inch siphon pipe failed did not mean that the Engineer was negligent for having recommended it.

Lessons Learned

This case underscores that project failure alone is not enough to establish liability for design professionals. In virtually all cases, expert testimony is essential to demonstrate that an engineer's conduct fell below the professional standard of care.