Michigan Construction Law: Sometimes Juries Get It Wrong
Design Professional Not Liable For Alleged Defective Pavement
By Aileen Leipprandt
In a recent Michigan Court of Appeals case, the court threw out a verdict by the jury against a design professional, holding that the engineer could not be held liable where there was no expert testimony that the engineer breached the professional standard of care. In the absence of this expert testimony, the appellate court concluded that the jury improperly was left to speculate whether the engineer’s conduct fell below the standard of care.
The case, City of Huntington Woods v Orchard Hiltz McCliment, Inc (“OHM”) (May 2012), involved reconstruction of Coolidge Highway in Oakland County. The plans and specifications prepared by OHM required that a certain type of binder be used with the asphalt and further provided for seasonal suspension of paving between November 14 and April 16. In spite of these specs and without issuing a change order, OHM allowed the use of a different binder and allowed paving to occur on November 18. Apparently there were problems with the paving and the City of Huntington sued OHM claiming OHM breached its contract by providing negligent design or negligent inspection or supervision of the contractor. The trial court treated the claim as one of professional negligence against OHM. The jury returned a verdict in favor of the City.
OHM appealed arguing that although it did not strictly comply with the plans and specs, there was no expert testimony that the standard of care required written change
orders for those changes or that the change in use of specified binder and paving on November 18 breached the standard of care. The court of appeals agreed, finding that the
absence of expert testimony on these points was fatal to the City’s claim. The trial court should have ruled in favor of the engineer and the matter should never have been submitted to the jury.
While the engineer ultimately prevailed, it suffered the privilege of doing so through a trial and appellate process. Next time around, the engineer may give closer consideration to the contract requirements, including the change order process.
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