Illinois Bar Journal

March 2011Volume 99Number 3Page 118

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Civil engineers’ duty of care defined by contractual obligation

Where the contract provided for "replacement" of a bridge deck, the defendant engineer had no duty to make improvements that might have saved lives, the high court said.

Reversing a decision of the Illinois Appellate Court, the Illinois Supreme Court reiterated that the scope of a civil engineer's duty of skill and care is defined by his contract for services and cannot be expanded beyond his contractual obligation. The case, in which the Illinois Trial Lawyers Association, the Illinois Association of Defense Trial Counsel, and a number of associations for architects and engineers filed amicus briefs, is Thompson v Gordon, No. 110066, January 21, 2011, 2011 WL 190290 (Ill Sup Ct).

The "Jersey" barrier

The defendants contracted to provide engineering services in connection with the development of the Gurnee Mills shopping mall in Lake County in 1991. The contract called for the defendants to design two additional ramps from I-94 to Illinois Route 132 and to replace the bridge deck surface over I-94.

The original bridge deck had a concrete median approximately six inches high separating traffic, but no other barrier. The defendants designed a replacement bridge deck with a similar median and completed the work later that or the following year.

In 1998, a fatal traffic accident occurred on that highway. The plaintiff, who was seriously injured, filed suit against the defendants and others, alleging that they should have designed and constructed a taller "Jersey barrier" on the road and that, had they done so, the accident would not have occurred. The defendants moved for summary judgment, arguing that they owed no duty of care to the injured plaintiff because the work they had contracted to perform did not require them to analyze or design a median barrier, and because their work did not encompass the area of the accident.

Relying on the supreme court's decision in Ferentchak v Village of Frankfort, 105 Ill 2d 474, 475 NE2d 822 (1985), in which the court held that a civil engineer was not required to establish minimum foundation grade levels absent a specific contractual commitment, and observing that the contract at issue did not call for an assessment of the median barrier's sufficiency, the trial court granted the motion. A divided panel of the Illinois Appellate Court reversed, and the supreme court granted leave to appeal.

"[S]ame or similar services"

The supreme court first found that the contract was not ambiguous. The term "replacement," which the contract used to describe the defendants' services regarding the bridge deck, did not require the defendants to design "improvements" that might have included a Jersey barrier, the court said.

The court then considered whether the appellate court properly held that the defendants' contract also imposed a professional duty of care on their work. Disagreeing with the lower court's analy­sis, the court said that the scope of the defendants' duties was defined and circumscribed by their contract.

The supreme court rejected the appellate court's reasoning that the applicable standard should match the standard of care generally applied to any professionals under Illinois law under Advincula v United Blood Services, 176 Ill 2d 1, 678 NE2d 1009 (1996).

Advincula, the court observed, addressed medical negligence and other types of professional negligence that did not involve contractual duties. In contrast, the matter before the court involved a contract that specifically stated that the applicable standard of care would be "the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services."

The standard of care, then, was limited to that normally employed by professional engineers performing services such as and similar to replacing a bridge deck, which, the court said, did not include improving the bridge deck or considering or adding a Jersey barrier.

The court reaffirmed its holding in Ferentchak that the degree of skill and care required of a civil engineer depends on his contractual obligation, and the scope of that duty is defined by the contract. In the matter before it, the contract's use of the phrase "same or similar services" limited the scope of the defendants' standard of care to replacing the bridge deck, the court said.

The appellate court should not have considered expert testimony to find a factual issue as to whether the duty of care should be expanded to include a duty to investigate the need for an improved median barrier, the high court found. To do so would impose an obligation that the contract did not provide for, though it easily could have.

That, it continued, would be contrary to well-settled law that a court cannot alter, change, or modify existing terms or add new terms or conditions to which the parties did not appear to have assented. The court reversed the appellate court's decision, affirmed the decision of the circuit court, and remanded the matter for further proceedings.

Helen W. Gunnarsson is a lawyer and writer in Highland Park. She can be reached at <>

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