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Design and Professional Liability

Failing To Define the Standard of Care

Kenneth Slavens | January 1, 2011

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In claims against design professionals, the key battle of the lawsuit more often than not becomes a battle of the expert witnesses. Some expert witnesses are excellent; however, some seem to be willing to simply say what they are being hired to say. The latter category is frequently called "hired guns" or worse.

Those who defend architects, engineers, and other related professionals struggle with convincing the courts or opposing counsel that the purported standard-of-care expert must do more than simply mouth the words that some amorphous "standard" has been violated and that the breach in some manner resulted in the damages alleged.

A Minnesota Court of Appeals has provided design professionals with additional support in the ongoing arguments over experts. In the case of Pond Hollow Homeowners Ass'n., et al. v. Ryland Group, Inc., et al., 779 N.W.2d 920 (Minn. App. 2010), the court held that the standard-of-care expert witness testifying against the design professional is obligated to establish, with specificity, the standard of care the design professional allegedly violated.

Factual Background

The Pond Hollow case arose out of the development of several homes. Pioneer Engineering, P.A. (the "Engineer") was hired "to design, engineer, and survey the site where the homes" were to be built. After the homes were constructed, the homeowners' association filed suit against the developer, alleging problems with the homes related to the water-table levels and drainage. The developer, in turn, sued the Engineer, claiming that if the developer was found liable to the homeowners' association, then the Engineer should be found liable to the developer for the same damages or some portion of the damages.

The developer hired a standard-of-care expert who rendered the opinion that the Engineer "deviated from the standard of care applicable to engineers in that it failed to properly recognize and evaluate the water table when determining the minimum building pad elevations." There was no more substance to the definition of the purported standard of care.

The Engineer filed a motion with the court which argued that the opinions of the developer's expert witness were not sufficient to establish a claim of professional negligence against it, and, therefore, the Engineer was entitled to judgment in its favor and against the developer.

The trial court agreed with the Engineer. The developer appealed.

Holdings of the Court of Appeals

The Minnesota Court of Appeals began its analysis by recognizing some commonly held guiding legal principals applicable to claims against design professionals. The court noted that the possibility of error is inescapable in the field of engineering and that engineers are not required to produce perfect results. However, engineers (and other design professionals) are required to exercise that skill and judgment which can be reasonably expected from similarly situated professionals.

The court of appeals then turned more directly to the issue at hand. To be successful on a claim against a design professional, the law of Minnesota—like almost all states—requires a qualified expert to render an opinion with an adequate foundation to establish the standard of care the design professional is alleged to have violated. In this case, the Minnesota Court of Appeals concluded that the developer's expert failed to do just that. The expert failed to explain how a "proper" evaluation should have been performed. The expert failed to explain industry practices or to refer to the Engineer's contract or industry guidelines related to the evaluation or recognition of the water table. The mere conclusion that the engineer "deviated from the standard of care" was found to be insufficient.

The court held that the developer was required by its expert to establish a standard of care tailored to the work that the Engineer was hired to perform. The court held that the developer's standard-of-care expert in this case failed to establish "with any precision the applicable standard of care." The court noted that the expert merely made the bare assertion that "the standard" was breached.

As a result, the Minnesota Court of Appeals concluded that judgment was properly entered in favor of the Engineer and against the developer.


This court has made clear that not only must an expert testify that the "standard of care" has been breached, but an expert is required to articulate the standard applicable under the facts of the particular case. The holding of the court clarifies that the expert must account for the scope of the professional engagement and the contractual relationship. In addition, the expert must establish how the alleged breach relates to the claimed damages.

This Minnesota Court of Appeals opinion forces expert witnesses to operate and render his or her opinions within the same confines that the design professional renders his or her services. This has not always been the case in legal disputes. The holding of the Minnesota Court of Appeals provides strong support to establish constraints on professional expert witnesses who are frequently viewed as a "hired guns" (in many cases, with some justification).

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