From the Massachusetts Appeals Court comes a reminder that a contract scope of services may serve to control or limit the scope of tort liability.

New homeowners sued the contractor and designer, hired by the former homeowner for a replacement septic system, when that system failed only a few years after installation. Turns out the contractor had placed “construction and other debris in the leaching fields” (apparently as “filler”), instead of using only sand.

The designer moved for summary judgment, on the basis that its contract required the designer to view the work when the hole for the new leaching field had been dug (but before placement of the sand and laterals), and again once the leaching field had been completed. It did so. But of course the designer was not present, and did not see, when the contractor used improper materials.

The trial court dismissed the homeowners’ claims against the designer, and the Appeals Court upheld the dismissal. If the designer was obligated to view the site on two occasions, and did so, the new homeowners could not establish that the designer had any other duty to inspect or observe the conditions. And thus they could not establish that the designer had failed to carry out its duty, in a tort sense. Per the court: “we would conclude, given both the scope and the limitations of the Design Team’s contractual responsibilities, that laymen could not reasonably infer without expert evidence that its failure to learn of the deficiencies constituted professional malpractice.”

This is a reminder – more for designers than contractors – that the scope of services being undertaken may serve not only as a restriction on contract obligations, but also on tort liability or exposure. An important lesson to keep in mind. The case is Van Sicklin v. Nantucket Surveyors, LLC, 2018 Mass. App. Unpub. LEXIS 777 (Oct. 23, 2018).