A recent Illinois appeals court ruling has found that design professionals can breach their professional standard of care by failing to perform work not expressly required by their contract.

In Thompson v. Gordon (Ill. App. Ct., 2nd Dist., Nov. 19, 2009), the plaintiff sued two engineering firms that designed a bridge and traffic interchange where the plaintiff’s husband and daughter were killed in a car accident. Under the terms of their written contract, the defendants agreed to provide final design and contract plan preparation for certain Phase I components of improvements, which included final structural design plans, that had been made to the interchange where the accident occurred.

Construction of the bridge replacement occurred in 1991. The defendants design for the work did not specify installation of a “jersey barrier.” In November 1998, the decedents’ car hit the median separating eastbound and westbound traffic, vaulted into the air, and collided with another car traveling westbound. The plaintiff contended that the defendants had a professional duty to install a “jersey barrier” to prevent accidents like the one that occurred.

The design defendants moved for summary judgment arguing that their contract did not require them to design a median that would prevent an eastbound vehicle from going over the median and colliding with a westbound vehicle. The plaintiff opposed the motion and attached an affidavit from a consulting civil engineer that opined that defendants violated their professional standard of care. He concluded that the defendants failed to properly consider and analyze all of the available data pertaining to traffic capacities, weave lane failures and decreases in operational service at the interchange that would result from the Phase I work. According to the engineer, the defendants knew that the Phase 1 work would lead to more dangerous driving conditions at the median, and yet failed to specify a design (i.e., a “jersey barrier” at the median) that would alleviate some of the risk caused by the changed conditions of the Phase 1 improvements.

The trial court granted the defendants’ motion for summary judgment. The court held that the defendants’ contract only required them to furnish the design for the removal and replacement of the bridge by others, and not to provide modification of the existing design.

The Appellate Court reversed. The Court concluded that the standard of care expressed in the contract required the design defendants to exercise the degree of skill and diligence normally employed by professional engineers, and that this required the defendants to provide services that extended beyond the scope of work expressly stated in the contract. For this reason, the Court held that the design professional defendants were responsible for more than just replacing the existing design of the bridge, and that the affidavit provided by the plaintiff’s expert created a material issue of fact that precluded summary judgment. The Court also rejected the defendants’ argument that the failure to specify installation of a jersey barrier was not a proximate cause of the decedents’ injuries because the median only furnished a condition that allowed the decedents’ collision. The Court held that there can be more than one proximate cause of an injury, and that a party can be liable in negligence in whole or in part for causing a plaintiff’s injury. Consequently, the Court reversed summary judgment on this ground as well.

The Appellate Court’s decision was not unanimous. Judge Hutchinson issued a strongly worded dissent in which he criticized the majority for “strain[ing] to reach a predetermined result.” He contended that the majority failed to interpret the standard-of-care provision in the defendants’ contract by looking to its plain and ordinary language, specifically the fact that the provision was limited to “defendants’ services.” Judge Hutchison concluded that nothing in the contract required the defendants to do anything more than provide the final design to rebuild the bridge and median as it existed. If the owner had wanted to obligate the defendants to re-design the median to include a “jersey barrier,” it could have inserted contract terms to that effect. Judge Hutchison also concluded that the majority misapplied the Illinois Supreme Court’s decision in Ferentchak v. Village of Frankfurt 105 Ill. 2d 474 (1985) by holding that a design professional may have duties beyond those expressed in its contract if it has adequate information that puts it on notice that it should do more. Doing so, Judge Hutchison argued, directly contravenes the rule expressed by the Supreme Court in Ferentchak that an engineer’s duty is solely dependant on its contractual obligation.