Blanchard Pointe Condo. Owners Ass'n v. Bowers Landing Of Merrimack Dev. Group

Blanchard Pointe Condominium Owners Association

v. Bowers Landing of Merrimack Development Group, LLC a/k/aBLOM Development Group, LLC and VMY Vitols Architects, Inc.

NO. 217-2010-CV-5003

MERRIMACK, SS SUPERIOR COURT

Decided January 19, 2011

ORDER

The Plaintiff, Blanchard Pointe Condominium Owners Association ("Blanchard"), brought this action against the Defendant, VMY Vitols Architects, Inc. ("VMY"), seeking damages as a result of alleged design flaws in the roof of the Blanchard Pointe Condominium Development located in Merrimack, New Hampshire. Several units experienced buildup of ice dams during the winter of 2007-2008 and 2008-2009 causing extensive damage to the property. VMY moves for summary judgment. Blanchard objects. For the reasons stated in this order, VMY's Motion for Summary Judgment is GRANTED in part and DENIED in part.

I

The facts are relatively straightforward. VMY contracted with Bowers Landing of Merrimack Development Group, LLC ("BLOM") to provide architectural services for design and construction of the Blanchard Pointe Condominium Development (the "Project"). VMY performed all of the architectural services on the Project pursuant to an "AIA document B181-1994"contract with BLOM, a standard form of agreement between an owner and an architect for housing services. VMY did not enter intoa contractual relationship with Blanchard and was not responsible for construction supervision. Blanchard has sued VMY in three counts, alleging breach of contract, negligence, and breach of the implied warranty of habitability and workmanlike quality.

VMY seeks summary judgment for three different reasons. First, it argues that it had no tort duty toward Blanchard. Second, it argues that even if it had a duty to Blanchard, Blanchard's expert, who is a professional engineer, lacks the qualifications to opine on the adequacy of VMY's architectural design. Finally, it alleges that since it had no contract with Blanchard, no contract or breach of warranty claim may be made against it. For the reasons stated in this Order, the Court DENIES VMY's Motion for Summary Judgment with respect to Blanchard's negligence claim, and GRANTS the Motion for Summary Judgment with respect to Blanchard's contract and warranty claims.

II

Blanchard alleges that VMY had an actionable duty to properly design the building that Blanchard maintains. Whether a duty exists in a particular case depends upon whether a duty is owed and what risks caused by breach of the duty are reasonably foreseeable. See, e.g., Corso v. Merrill, 119 N.H. 647, 654 (1979). In determining whether an injury may be said to be foreseeable so as to allow recovery, the Court balances the policy considerations of the need to avoid both infinite liability and uncertainty in the law with the need to compensate those plaintiffs whose injuries derived from a defendant's negligence. See, e.g.. Nutter v. Frisbie Memorial Hospital 124 N.H. 791, 795 (1984). The New Hampshire Supreme Court has stated that an actionable duty of care rests upon a judicial determination of whether the social importance of protecting the plaintiff's interest outweighs the importance of immunizing the defendant from expanded liability. Sisson v Jankowski, 148 N.H. 503, 506, 509 (2002).

Applying these principles, the New Hampshire Supreme Court has specifically recognized that professionals may owe duties that extend beyond their clients. Morvay v. Hanover Ins. Co.. 127 N.H. 723, 725 (1986); Spherex v. Alexander Grant & Co., 122 N.H. 898, 902 (1982); Bruzga v. PMR Architects, PC, 141 N.H. 756 (1997). Perhaps the leading case is Spherex v. Alexander Grant & Company, in which the Court held that accountants are liable in an action sounding in negligence to that group of persons who foreseeably rely on the accountant's work. 122 N.H. at 902. Similarly, in Morvay v. Hanover Insurance Companies, the Court held that a fire investigator hired by an insurance company could be sued for negligence by property owners despite a lack of privity because it was foreseeable that property owners would be harmed financially if the investigation was performed negligently. 127 N.H. at 725.

In Bruzga v. PMR Architects, PC, the Court recognized that architects and contractor have a duty to design and construct safe structures. 141 N.H. at 759. While recognizing the existence of a duty in Bruzga, the Court was careful to circumscribe it. It held that while architects and contractors have a duty to design and construct safe structures, the duty is not limitless and that no liability existedto the estate of a person who had committed suicide¹ in a prison once the architect turned the structure over to the owner. Id. at 759

The majority of jurisdictions hold that architects are liable in negligence to those injured by a defective design. See, e.g., 5 Am. Jur. 2d § 26.It is foreseeable that the condominium owners association of a condominium complex architect may suffer damages as a result of the negligent design of the complex. Under the circumstances, the Court believes that VMY owed an actionable duty to Blanchard to properly design the condominium complex.

Ill

Blanchard has produced an expert report from one Fred Emanuel, P.E. Mr. Emanuel has been deposed on his opinion that the roof was either defectively designed or constructed. The Court has already considered a motion to exclude Mr. Emanuel's testimony on the ground of late disclosure. The Court declined to do so, by Order of December 13, 2010, but ordered that Blanchard allow its expert to be re-deposed and to pay the costs of BLOM's expert review of Blanchard's report to re-deposition of its expert including BLOM's costs and attorney's fees and expense for examination of the property.

VMY claims that Mr. Emanuel should be excluded because an engineer cannot testify about the quality of an architect's design. However, at his deposition, Mr. Emanuel testified that he obtained a Bachelor of Science degree in civil engineering from the University of New Hampshire and a Master of Science in civil engineering from Northeastern University. He further testified thai he is"' a licensed professional engineer in eight states, including New Hampshire. Additionally, he testified that, as the senior engineer of Emanuel Engineering, he is responsible for all civil structural architectural fields.

Generally, claims of professional negligence must be supported by expert testimony. See, e.g.. Estate of Joshua T. v. State. 150 N.H. 405, 408 (2003). Such expert testimony may be qualified by knowledge, experience, training or education. Milliken v. Dartmouth Hitchcock Clinic, 154 N.H. 662, 667 (2006). The admissibility of expert testimony is governed by statute and rule. New Hampshire Rule of Evidence 702 provides that if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact at issue, a witness qualified as expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. See also RSA 5i6:29-a; Baxter v. Temple, 157 N.H. 280, 283-84 (2007). Expert testimony must rise to a threshold level of reliability to be admissible under RSA 5i6:29-a and under Rule 702. See, e.g., Goudreault v. Kleeman, 158 N.H. 236, 239 (2008). Under the statute and rule, an expert must employ the same level of intellectual rigor that characterizes the practice of an expert in the relevant field; the role of the Court in ruling on the admissibility of expert testimony is not to resolve a debate, but to determine whether an expert has a viable basis for his opinion. Baxter, 157 N.H. at 298.

Here, Blanchard has asserted without contradiction that Mr. Emanuel is alicensed professional engineer who has supervised architects in the course of his practice. Mr. Emanuel has also testihed that he has significant experience with ice dams on condominium roofs. Further, the Court finds that the design of a roof is not a matter unique to architects, but rather requires mathematical knowledge which falls in the area where architecture and engineering overlap. VMY fails to cite any case in New Hampshire or elsewhere holding that a qualified engineer could not testify as an expert witness regarding an architect's standard of care. On the other hand, numerous jurisdictions have concluded that engineers are qualified to provide opinion testimony similar to that of architects. See, e.g., Martin v. Sizemore. 78 S.W.3d 249, 275 (Tenn. App. Ct. 2001); Sch. Dist. No. 11 v. Sverdrup & Parcel & Assocs.. Inc., 797 F.2d 651, 653 (8th Cir. 1986); Nat'l Cash Register Co. v. Haak. 335 A.2d 407, 411 (Pa. Super. Ct. 1975) ("What the jury needed was not 'the assistance of one who possesses a knowledge' of architecture but of surface water disposal systems. Whether the person offering that assistance happened to be an architect, or engineer, or geologist, or something else, was unimportant; what was important was what he knew.")

While it is true that in order to succeed on a claim of professional liability against BLOM and VMY, Blanchard must obtain expert testimony, Blanchard...