Virginia Lawyers Weekly

The owners of a parking lot damaged under the weight of heavy trash trucks can sue the engineering firm that designed the lot for professional negligence.

The reason: the economic loss rule.

The case is Central Park Drive, LLC v. Rinker Design Assocs. (VLW 008-8-181) with an opinion letter written by Fairfax Circuit Judge Bruce D. White.

The decision highlights the confusion that persists about the application of the economic loss rule in Virginia, 14 years after Virginia Lawyers Weekly surveyed the cases and reported that the doctrine “leaves lawyers scratching their heads.”

The plaintiffs in Central Park Drive operated a waste-hauling and recycling business that contracted with Rinker, a civil engineering firm, to design an asphalt parking lot and travel way at the business’ headquarters. The heavy trash trucks caused depressions and other deterioration in the parking lot. The plaintiffs sued for “Breach of Contract/Professional Negligence” and demanded $750,000 in damages.

The plaintiffs claimed that Rinker owed a duty under its contract to perform “with the reasonable care, technical skill, ability, and judgment as is generally required of similar design professionals,” according to the plaintiffs’ brief.

Rinker’s demurrer sought to eliminate that professional duty standard. “The issue is what ongoing viability the concept of negligence has in economic loss cases against professionals who are not doctors or lawyers,” said Washington D.C. lawyer Arthur T.K. “Tom” Norris, who represented the defendant engineering firm.

Norris argued that, in a claim against engineers based on damage not caused by a direct injury to person or property, the case should be based solely on contract law. That means, he said, the case should be decided based on contract expectations, not a negligence standard. It also means that damages should be limited to disappointed expectations, with no consequential or punitive damages.

Norris cited the 1988 case of Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., a touchstone of law on the economic loss rule, to argue that contract law provides the sole remedy against design professionals.

The plaintiffs defended their “hybrid” contract/professional negligence claim and analogized the case to decisions involving claims of legal malpractice. In a number of attorney malpractice cases, the Supreme Court of Virginia has held that claims for professional negligence are claims for breach of contract that, nevertheless, sound in tort and are judged on tort law duties.
Norris attempted to distinguish this construction law action from cases involving lawyers. “I think attorneys are different,” he said.

The outcome is not entirely clear. “My objective was to eradicate the concept of negligence from the professional liability claims,” said Norris. “I think we did that in all but name.”

Indeed, White ruled that “Plaintiffs’ sole remedy is for breach of contract.” He stated that the claim of professional negligence is “a cause of action governed by contract law.” Overruling Norris’ demurrer, however, White wrote that “Count I states a valid cause of action for Breach of Contract/Professional Negligence.”

“I asked the judge to carve out all the negligence language from Count I. Instead, he overruled the demurrer and allowed the claim to go forward,” Norris said.

Lawyers for both sides agreed that the proof of survival of the negligence claim will be in the jury instructions. If the hybrid contract-negligence action has validity in the case, “you’ll get an instruction on professional negligence – on the duty of a professional,” said plaintiffs’ lawyer Aaron S. Book of Leesburg.

Trial in the case is set for Feb. 23.

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