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Design and Professional Liability

No Expertise, No Testimony on Architect's Standard of Care

Kenneth Slavens | May 17, 2024

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Close-up of an indoor swimming pool.

Earlier this year, the Indiana Supreme Court was asked to consider the qualifications for an expert witness endorsed to testify as to the design professionals' failures to meet the standard of care. It held that a risk and safety management consultant did not have the requisite familiarity with the standard of care applicable to architects to testify as to the standard or any departure in Pennington v. Memorial Hospital of South Bend, Inc., et al, 223 N.E.3d 1086 (Ind. 2024).

Facts of the Case

Jennifer Pennington visited the health and fitness center ("the Center") and swam in the pool during its first week of operation. After swimming several laps, her head collided with a corner of a wing-wall in the pool, causing her injury. She and her spouse ("Plaintiffs") sued several defendants.

Among the defendants sued were the principal architect and designer of the Center and a subconsultant who was retained to design the Center's swimming pool. In support of their claims, Plaintiffs endorsed a "Risk and Safety Management Consultant" with experience managing aquatic facilities ("Consultant"). The Consultant was endorsed to testify as to the standard of care and violations by the principal architect and the designer of the pool.

At his deposition, the Consultant admitted that he had no experience, education, or training in how to engineer the design of a swimming pool. He also admitted that he was not qualified to give an opinion on the standard of care applicable to any architect. Considering this testimony, the trial court excluded the Consultant's evidence to the extent it bore on swimming pool design and granted summary judgment for the defendant-architects.

The Indiana Supreme Court was asked to consider issues related to the qualifications for an expert witness to testify as a standard of care expert against a design professional.

The Court's Analysis

The Indiana Supreme Court agreed with the trial court. It acknowledged that a design professional is negligent if that professional "breached a duty to exercise the degree of competence ordinarily exercised in like circumstances by reputable members of the profession."

To show a breach by the design professional, there must be a witness who has familiarity with the standard of care. That expert must not only be familiar with the standard of care but must be able to testify to the departure from that standard.

The court was also asked to consider some other related evidentiary issues. However, the court found that the evidence presented by Plaintiffs did not create an issue of fact on whether the defendant-architects' work fell below their professional standard of care. Summary judgment was properly entered by the trial court in favor of the defendant-architects.

Practice Tip

This is not groundbreaking in that several states have similar holdings. However, there are fundamental reminders worth considering. If the defendant is an engineer, have experts who are engineers. If the defendant is an architect, have experts who are architects. This is true whether you are defending or bringing the claim. The Consultant presumably had significant experience with pool management and maintenance, but this does not translate to design expertise.

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