The Battle of the Bollards Anne P. Zebrowski Vanasse Hangen Brustlin, Inc. David J. Hatem PC Donovan Hatem LLP
Learning Objectives Examine the duties that can be imposed through a contractual service scope by studying actual case scenarios. Understand how the standard of care can be expanded through broadly or poorly drafted contracts and actual conduct in rendering services. Examine whether a design professional has an independent duty to design and/or specify the use of bollards and other protective barriers where the contractual service scope did not require the design professional to assess the need for such improvements. Compare well-drafted scope of service provisions that limit one s duty with broadly worded provisions and conduct that expand one s duty. 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 2 6-Oct-11 2 6-Oct-11
Agenda Bollard cases: a growing trend? Anatomy of a bollard case Issues presented: Contractual Service Scope and Duty of Care Legal context Lessons learned and observations 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 3 6-Oct-11 3 6-Oct-11
The Bollard Cases Nationwide trends Settlements multi-million million dollar settlements for severe personal injury or wrongful death claims Verdicts wide range of verdicts across country Freak accidents or a growing trend? Many accidents and resulting lawsuits involve elderly drivers losing control of vehicle and causing significant damage/injuries As population ages, will accidents involving elderly drivers increase? Are these freak or foreseeable events Some national statistics 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 4 6-Oct-11 4 6-Oct-11
Anatomy of a Bollard Case Site/project descriptions Original strip mall Partial rehabilitation project in 2000 Superimposed big box prototype design Transportation improvements General site facelift 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 5 6-Oct-11 5 6-Oct-11
Anatomy of a Bollard Case Source: all photos/charts h t provided d by Vanasse Hangen Brustlin Inc. 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 6 6-Oct-11 6 6-Oct-11
Anatomy of a Bollard Case 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 7 6-Oct-11 7 6-Oct-11
Anatomy of a Bollard Case 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 8 6-Oct-11 8 6-Oct-11
Anatomy of a Bollard Case 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 9 6-Oct-11 9 6-Oct-11
Anatomy of a Bollard Case The Accident: Elderly driver (82 years old with dementia) lost control of vehicle (1995 Crown Victoria) jumped curb adjacent to store Car wedged between two columns Hit plaintiff standing on the sidewalk 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 10 6-Oct-11 10 6-Oct-11
Police accident diagram 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 11 6-Oct-11 6-Oct-11
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Anatomy of a Bollard Case The Injuries: Plaintiff seriously injured triggering full leg amputation Claimed unsubstantiated brain injuries and emotional distress Plaintiff permanently disabled and allegedly spends most of her time coping with related rehabilitation and effects of her injuries 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 13 6-Oct-11 13 6-Oct-11
Anatomy of a Bollard Case The Lawsuit: Elderly driver criminally charged with negligent operation of a motor vehicle shortly after accident Plaintiff filed civil suit on June 15, 2006 Defendants: Elderly driver suffered from severe ere dementia Owner/Landlord large publicly traded REIT (the Developer ) Tenant - national big box retailer Preferred Planner/Architect national architectural firm Site Engineer Vanasse Hangen Brustlin, Inc. ( VHB ) 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 14 6-Oct-11 14 6-Oct-11
Issues Presented Which defendants, if any, owed the plaintiff a legal duty? Was VHB s duty defined by its contract with the developer? What was the scope of VHB s duty? Did VHB meet the standard of care? Have bollards or other protective barriers become part of the standard of care? 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 15 6-Oct-11 15 6-Oct-11
Legal Context Professional Standard of Care Klein v. Catalano, 386 Mass. 701, 718 (1982) In the absence of a special agreement [a design professional] does not imply or guarantee a perfect plan or satisfactory result... [design professionals]... and others deal in somewhat inexact sciences and are continually called upon to exercise their skilled judgment in order to anticipate and provide for random factors which are incapable of precise measurement. The indeterminable nature of these factors makes it impossible for professional service people to gauge them with complete accuracy in every instance. Because of the inescapable possibility of error which inheres in these services, the law has traditionally required, not perfect results, but rather the exercise of that skill and judgment which can be reasonably expected from similarly situated professionals. 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 16 6-Oct-11 16 6-Oct-11
Legal Context General Principles: Scope of duty defined and limited by the terms of its contract, including scope of services and standard of care provisions Courts will enforce terms of unambiguous contract By actual conduct, a Design Professional may assume duties that transcend contractual duty limitations How did our Bollard Case measure against these general principles? VHB s Service Scope was limited to site engineering services for the parking lot and did not include the curb, the sidewalk or the building structure 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 17 6-Oct-11 17 6-Oct-11
Legal Context An independent Design Professional had responsibility for design of the sidewalk and the building structure Notwithstanding these clear design scope delineations and allocations, each Design Professional had the obligation to review e the design of the other in areas of scope interface, e.g., the intersection of the parking lot with the sidewalk VHB s General Notes on Drawings referred to architectural drawing for exact building dimensions and all details contiguous to the building, including sidewalks, ramps, building entrances, stairways, utility penetrations, concrete door pads, compactor pad, loading docks, bollards, etc. No evidence that VHB transcended contractual scope limitations 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 18 6-Oct-11 18 6-Oct-11
Legal Context Procedural Background of Bollard Case Extensive Discovery Phase Multiple sets of interrogatories Multiple requests for production of documents hundreds of thousands of documents, electronic discovery 20+ depositions able to get admissions from various parties regarding VHB s limited scope of services Motions for Summary Judgment Timing of Summary Judgment dictated by plaintiff s right to complete discovery, including VHB s deposition Plaintiff not required to designate expert until completion of discovery 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 19 6-Oct-11 19 6-Oct-11
Legal Context VHB s Summary Judgment Motion Scope of Duty defined by contract VHB s Scope of Services limited to portion of parking lot area leading up to edge of the sidewalk Excluded footprint of building Excluded any site/civil design services beyond parking lot Excluded traffic analysis or impact study VHB did not design sidewalk or curbs where accident occurred At time of Summary Judgment filing, Illinois case of Thompson v. Gordon was pending 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 20 6-Oct-11 20 6-Oct-11
Thompson v. Gordon The Legal Issues 1. whether an engineer s duty was limited by scope provisions of its contract 2. how to interpret service scope provisions with standard of care provisions 3. may the engineer s duty be expanded beyond scope limitations it ti by an expert opinion i proffered by the plaintiff 4. are these issues appropriate for determination on a Summary Judgment motion & short of a jury trial? 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 21 6-Oct-11 21 6-Oct-11
Thompson v. Gordon The Facts Developer of proposed shopping mall required by state to increase traffic capacity on adjacent bridge by adding two (2) new ramps and replacing bridge deck surface Existing bridge deck surface had a concrete median six (6) inches high and four (4) feet wide that divided eastbound and westbound traffic lanes Developer retained Engineer to design the new ramps and the replacement of the existing bridge deck (the Project ) Following completion of the Project, two of the plaintiffs were killed and a third seriously injured when a driver in the eastbound lane lost control of his vehicle, hit & jumped the median and then hit the plaintiffs car, which was traveling in the westbound lane 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 22 6-Oct-11 22 6-Oct-11
Thompson v. Gordon The Claims and Defense Plaintiffs sued Engineer Plaintiffs retained an expert who opined that the Engineer was negligent in its design in failing to: (a) include in its services proposal a median barrier warrant analysis (b) consider the necessity of crossover protection on the bridge deck, including Jersey barriers (c) design barrier medians to separate traffic between lanes The expert concluded that had the Engineer done the foregoing it is more probable than not that a Jersey barrier would have been designed d and constructed, t which h would have prevented the accident 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 23 6-Oct-11 23 6-Oct-11
Thompson v. Gordon Trial Court Grants Summary Judgment Trial Court granted Engineer s Motion for Summary Judgment on basis that the Engineer s duty to the plaintiffs was circumscribed by the terms of the contract between the Developer and the Engineer Trial Court found that since contract did not call for an assessment of the sufficiency of the existing median barrier and simply to design a replacement, not an improvement for same, the Engineer fulfilled its duty 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 24 6-Oct-11 24 6-Oct-11
Thompson v. Gordon Intermediate Appellate Court Decision Plaintiffs appealed Intermediate Appellate Court reversed the Trial Court In reversing, the Appellate Court pointed to the standard of care provision in the contract and stated that the plaintiffs expert raised a genuine issue of fact as to whether an engineer performing a similar scope undertaking would have considered and designed an improved median barrier 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 25 6-Oct-11 25 6-Oct-11
Thompson v. Gordon Supreme Court Decision (January 21, 2011) Engineer appealed Amicus briefs filed by: ACEC Illinois AIA Illinois Structural Engineer s Assoc. of Illinois ASCE Plaintiffs Trial Lawyers Association 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 26 6-Oct-11 26 6-Oct-11
Thompson v. Gordon Supreme Court Decision (January 21, 2011) Supreme Court reversed and reinstated Summary Judgment for the Engineer on basis: Engineer had no contractual duty to improve the design of the existing median barrier The standard of care provision did not include that duty The Engineer was required to exercise reasonable care expected of other engineers performing the same or similar circumstances, i.e., designing a replacement of the bridge deck and existing median barrier, not improving the bridge deck or considering or adding a Jersey barrier 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 27 6-Oct-11 27 6-Oct-11
Thompson v. Gordon Supreme Court Decision (January 21, 2011)... [T]he scope of [Engineer s] duty is defined by [its] contract [with the Developer]. The plain language of that contract required [Engineer] to replace the bridge deck and, in doing so, required [Engineer] to use the degree of skill and diligence normally employed by professional engineers performing the same or similar services. The use of the phrase same or similar services limits the scope of the [Engineer s] standard of care to replacing the bridge deck. Because the standard of care was expressly limited to [Engineer s] duty to replace the bridge deck, the appellate court erred in considering [the plaintiffs expert opinion] to nonetheless raise a question of fact whether [Engineer s] standard of care also required [Engineer] to improve the bridge deck to include Jersey barrier... 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 28 6-Oct-11 28 6-Oct-11
Thompson v. Gordon Supreme Court Decision (January 21, 2011) Supreme Court stated:... The parties easily could have included a provision in the contract requiring [Engineer] to improve the bridge deck to include a Jersey barrier, but they did not. The appellate court therefore erred in holding that, based upon its contractual standard of care clause in [Engineer s] contract, there was a question of fact whether [Engineer] owed a duty to consider and design a Jersey barrier 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 29 6-Oct-11 29 6-Oct-11
Our Bollard Case Plaintiff agreed to voluntary dismissal of VHB based on Summary Judgment papers VHB obtains Summary Judgment dismissing co-defendants cross-claims for contribution and indemnification, precluding joint and several liability Note: 1. Co-defendants settled with the Plaintiff for in excess of $2 million following VHB s dismissal 2. VHB/XL contributed nothing to the settlement 3. Under joint and several liability, if VHB had been found liable for only 1%, it could be held liable for entire judgment 4. At time of dismissal of VHB, the Supreme Court had yet to issue decisions in Thompson v. Gordon 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 30 6-Oct-11 30 6-Oct-11
Our Bollard Case Litigation costs VHB s costs Out of pocket costs Outside counsel Experts Other costs Opportunity costs VHB in-house counsel time 156 hours VHB staff time 212 hours 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 31 6-Oct-11 31 6-Oct-11
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Lessons Learned & Observations Your duty can be circumscribed by what you undertake to do by contract You should not be held responsible for more than you were contractually obligated to perform for your client; however: A vague, broadly drafted scope of services allows room for inventive interpretation Actual conduct in rendering services can broaden duty Service scope should be clearly drafted affirmatively and negatively 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 40 6-Oct-11 40 6-Oct-11
Lessons Learned & Observations Importance of clarifying scope vis-à-vis scope of services and roles/responsibilities of other project participants A well-drafted scope of services should answer these questions: What are you going to be doing? What are other members of the team going to do? What will be the role of other Design Professionals? What is the client s role, if any? Design integration/coordination How do your services relate to or integrate with the other design professionals? 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 41 6-Oct-11 41 6-Oct-11
Lessons Learned & Observations Balancing the tensions between (a) Owner program, design preferences, budget and (b) the Design Professional s duties and standard of care Codes and other public regulation, not civil suits against Design Professional, should be the balancing mechanism 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 42 6-Oct-11 42 6-Oct-11
Lessons Learned & Observations Don t forget the Internet Search the parties web sites at the first sign of trouble for anything useful (before they are sanitized) Use the clients materials to your advantage Owner s web site was critical to VHB s defense Big box user s web site was critical to VHB s defense Big box user s prototype was critical to VHB s defense Owner/big box user s ground lease was critical to VHB s defense Know your own web site; it will be used against you! 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 43 6-Oct-11 43 6-Oct-11
Lessons Learned & Observations Protect yourself against the curbless prototypes and other non-standard design features: Owner s interest to promote access to facility creates tension with need to promote safety Obtain waivers Notify clients of this negative trend Recommend in writing bollards and other barriers Several websites & other product info available on bollards Be patient t build your case for a win or favorable settlement 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 44 6-Oct-11 44 6-Oct-11
Notices & Disclaimers UNITED STATES "XL Insurance" is a registered trademark of XL Group plc and the global brand used by its insurance companies. In the US, the XL Insurance companies are: Greenwich Insurance Company, Indian Harbor Insurance Company, XL Insurance America, Inc., XL Insurance Company of New York, Inc., XL Select Insurance Company, and XL Specialty Insurance Company. Not all of the insurers do business in all jurisdictions nor is coverage available in all jurisdictions. The information contained herein is intended for informational purposes only. Insurance coverage in any particular case will depend upon the type of policy in effect, the terms, conditions and exclusions in any such policy, and the facts of each unique situation. No representation is made that any specific insurance coverage would apply in the circumstances outlined herein. Please refer to the individual policy forms for specific coverage details. CANADA "XL Insurance" is a registered trademark of XL Capital Ltd. XL Insurance is the global brand used by member insurers of the XL Capital Ltd group of companies. In Canada, the XL Insurance companies are XL Insurance Company Limited, Canadian Branch. Not all of the insurers do business in all jurisdictions nor is coverage available in all jurisdictions. The information contained herein is intended for informational purposes only. Insurance coverage in any particular case will depend upon the type of policy in effect, the terms, conditions and exclusions in any such policy, and the facts of each unique situation. No representation is made that any specific insurance coverage would apply in the circumstances outlined herein. Please refer to the individual policy forms for specific coverage details. 2009 2011 X.L. X.L. America, America, Inc. Inc. Page Page 45 6-Oct-11 45 6-Oct-11