A technical breach by an engineer of its design professional agreement may not be enough to establish that the engineer is negligent. As the City of Huntington Woods learned in Huntington Woods v. Orchard, Hiltz & McCliment, 2012 Mich App. LEXIS 879, expert testimony may be required to establish that an engineer’s contract breach amounts to negligence by the engineer.

In Huntington Woods v. Orchard, Hiltz & McCliment, the City of Huntington Woods executed a design engineering services contract with Orchard, Hiltz & McCliment, Inc. (OHM). As part of the design services, OHM was to design and observe the reconstruction and rehabilitation of portions of Coolidge Highway in Oakland County, Michigan.

The final plans and specifications prepared by OHM specified that a 70/22 binder was to be used in the asphalt and that seasonal suspension of paving was to occur from November 14 to April 16. The plans and specifications required a change order for any change in the plans.

During the construction of the project, OHM allowed the project to be constructed with 64/28 binder and allowed paving on the project to occur on November 16, after the November 14 deadline. After the completion of the project, when the asphalt began to deteriorate, Huntington Woods filed a lawsuit against OHM alleging that OHM provided negligent design, inspection and supervision services resulting in defective pavement on the project.

The experts testifying on behalf of Huntington Woods at trial testified that in order for OHM to meet the standard of care, OHM had to ensure that the general contractor built the road in accordance with the plans and specifications for the project. After Huntington Woods obtained a judgment in its favor, OHM appealed.

On appeal, OHM argued that Huntington Woods failed to establish the prima facie case of negligence and contended that Huntington Woods must establish that OHM’s actual conduct on the project breached the standard of care. In other words, OHM argued that Huntington Woods must establish that by allowing the contractor to pave on November 16 and allowing the contractor to install 64/28 binder, OHM’s conduct fell below the conduct required of an engineer of ordinary skill and judgment.

The Court agreed with OHM, finding that in order to establish negligence, Huntington Woods must offer expert testimony that OHM’s actual conduct fell below the standard of care. Since there was no expert testimony that a professional engineer of ordinary skill and judgment would not have allowed paving on November 16 or allowed the contractor to install 64/28 binder, Huntington Woods did not present a prima facie case of professional malpractice against OHM.