Massachusetts Supreme Court Holds Expert Testimony Is Not Always Required to Support Professional Negligence Claim

LeBlanc v. Logan Hilton J.V.
463 Mass. 316 (2012)

The Massachusetts Supreme Court ruled where there is evidence that design professionals had actual knowledge of deficiencies in the installation of electrical switchgear but failed to fulfill their contractual duties to report the deficiencies to the property owner, the evidence of is sufficient to support a finding of professional negligence without an expert opinion.

This dispute arose out of the death by electrocution of an electrician performing repairs to an electrical transformer at the Logan Airport Hilton Hotel. The electrician’s wife, as administratrix of her husband’s estate, filed suit against the owner of the hotel, the architect, the consultant who provided electrical engineering services (together with the architect, the “design team”), and the electrical subcontractor. In turn, the owner of the hotel filed cross-claims against the architect and the electrical consultant for indemnification and contribution. The owner and electrical subcontractor eventually settled with the plaintiff, but the following dispute ensued regarding ultimate responsibility for those damages.

Under the terms of the agreement between the owner and the architect, the architect was to provide architectural services for construction of the hotel, including delivery of a preliminary layout of switchgear, transformer and generator placement and preparation of final electrical specifications. The architect was also obligated to visit the construction site from time to time to become familiar with the quality and progress of the work. The architect was further obligated to submit bi-weekly written reports to the owner recording its site observations. The architect was entitled to retain professional consultants as it deemed necessary to provide these services, and the electrical consultant was retained for this purpose. Under the terms of the architectural contract, the architect was responsible for the performance of the consultant’s services as if the architect had performed them itself.

The electrical system at the hotel utilized what is known as a “switchgear”, a device that enabled alternate routes of electricity flow. Unfortunately, a switchgear also creates a “backfeeder hazard”, the simultaneous flow of two live currents through the equipment. This is dangerous because without adequate warning and safety measures, an electrical worker might incorrectly assume the suppression of one line eliminated all of the live flow through the equipment.

In this case, the applicable specifications for the switchgear required that it have a stenciled diagram on the face of the equipment showing the “switching” arrangement and a second warning sign on or adjacent to any switching equipment. However, the warning signage was not installed. During an inspection prior to the accident, a subcontractor hired by the electrical subcontractor noted that the signage was not installed as required. After reviewing the subcontractor’s inspection report, the electrical consultant directed the electrical subcontractor to install the signage. Nevertheless, the signage was not installed, and when the electrical consultant submitted its report to the architect, it did not mention the presence or absence of warning signs.

Faced with these facts, the Superior Court granted the design team’s motion for summary judgment on the owner’s contribution and indemnity claims. Putting aside the contractual grounds for the court’s decision, as an independent ground for granting summary judgment, the court found that the plaintiff could not prevail without expert evidence to support its claim of negligence.

The Court of Appeals disagreed, finding that although the design team had no responsibility for controlling or commanding the contractor or subcontractors in the field, the design team did owe a duty to the owner to provide bi-weekly reports of work progress, competence and, especially, deficiencies. The court concluded that the design team’s failure to notify the owner about the electrical subcontractor’s failure to install warning signage constituted a contractual breach that posed a serious risk to third parties and thereby created an issue of fact of causal negligence for trial. The court further concluded that expert opinion was not needed to support the claim of professional negligence because the issue of causal negligence was comprehensible to a layperson in view of the design team’s contractual duties, the special hazards of electricity, and the evidence of insufficient monitoring and notification.

The Supreme Court affirmed the Court of Appeals’ decision that an expert report or opinion was not required under these facts. The Supreme Court noted that the outcome would be different if the claim were that the design team did not know, but should have known, of the deficiencies in the switchgear. According to the Court, a laymen could not reasonably infer without expert evidence that the failure of the design team to discover the deficiencies constituted professional malpractice. However, where, as here, there was actual evidence that the team knew about the deficiencies but failed to notify the owner, and where the deficiencies created such an obvious risk to the safety of others, the evidence is sufficient to support a finding of negligence without an expert opinion. Therefore, the Court remanded the case for trial on the owner’s contribution claims.

James M. Kwartnik, Jr.

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