Samuelson v. Lord, Aeck & Sergeant, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: POPE; CARLEY, P.J., and JOHNSON
• Citation: Samuelson v. Lord, Aeck & Sergeant, Inc., 423 S.E.2d 268, 205 Ga.App. 568 (Ga. App. 1992)
• Decision Date: 08 September 1992
• Docket Number: No. A92A1226,A92A1226
• Parties: SAMUELSON v. LORD, AECK & SERGEANT, INC. et al.

Page 268

423 S.E.2d 268

205 Ga.App. 568

SAMUELSON v. LORD, AECK & SERGEANT, INC. et al.

No. A92A1226.

Court of Appeals of Georgia.

Sept. 8, 1992.

Reconsideration Denied Sept. 25, 1992.

Certiorari Denied Nov. 13, 1992.

Cashin, Morton & Mullins, Harry L. Cashin, Jr., Noel B. McDevitt, Jr., Raymond C. Mayer, Atlanta, Davis, Gregory & Christy, Hardy Gregory, Jr., Vienna, Crim & Bassler, Candler Crim, Jr., Atlanta, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Lisa M. Smith, Robert W. Browning, Pursley, Howell, Lowery & Meeks, Paul A. Howell, Jr., Bryan A. Vroon, Atlanta, for appellees.

POPE, Judge.

Plaintiff Kyle Joan Samuelson brought this action against defendants LRE Engineering, Inc. (hereinafter "engineers"), and Lord, Aeck & Sergeant, Inc. (hereinafter "architects"), as well as several other defendants, claiming defendants are liable for the injuries she received when she was struck by an automobile while jogging. Both defendants moved for dismissal of the complaint for failure to state a claim. Additionally, defendant architects moved, in the alternative, for judgment on the pleadings. The trial court granted the motions and plaintiff appeals.

Plaintiff alleges in the complaint that she was jogging on the grassy shoulder of Spalding Drive in Gwinnett County headed east on the south side of the road. When she reached the post office property at 5600 Spalding Drive the shoulder was replaced by an unmarked paved turn lane. She continued jogging in the turn lane and was struck from behind by an automobile also travelling east in the turn lane and sustained severe and disabling injuries. Plaintiff alleges defendants engineers and architects were responsible for the site design of the post office which eliminated the shoulder adjacent to the road and created in its place a sloping bank with an above-ground manhole which could not be used by pedestrians. Plaintiff alleges defendants were negligent in designing the site, that the design constitutes negligence per se because it does not conform to applicable Gwinnett County roadway development standards and that the design constitutes a nuisance. Defendants argue the complaint was rightly dismissed because the complaint alleges they committed professional malpractice but the expert affidavits filed in support of the complaint fail to meet the minimum requirements of OCGA § 9-11- 9.1 and also because the complaint fails to state a claim upon which relief can be granted. Defendant architects further argue that the pleadings and admissions in judicio demonstrate that plaintiff is not entitled to recover and therefore, the trial court's grant of judgment on the pleadings was also proper.

1. First we address the sufficiency of the expert affidavits. The affidavit of a licensed engineer was filed in regard to the complaint against defendant engineers and the affidavit of a licensed architect was filed in regard to the complaint against defendant architects. The affidavit of the engineer recited that the affiant had reviewed certain documents concerning the design of the site and contained the opinion that in the execution and construction of the project, defendant engineers "failed to follow generally accepted and customary engineering practices and principles and failed to exercise that degree of care generally employed by engineering professionals in the field of civil engineering under similar conditions and like surrounding circumstances...." The expert went on to opine that defendant engineers "among other things, might have recommended that a retaining wall be constructed along the frontage of the ... property in such a way as to permit continuous pedestrian traffic along Spalding Drive ...; and further that [defendant engineers] failed to design such a wall or other appropriate safe alternative." The affiant also asserted he had reviewed the facts alleged in the complaint and, in his opinion, "such facts, if true, constitute professional malpractice." The affidavit of the architect was virtually identical except it referred to the standards and practices of architects.

Citing Cheeley v. Henderson, 261 Ga. 498, 405 S.E.2d 865 (1991), defendants argue the affidavits were insufficient. In Cheeley, the Georgia Supreme Court held that because the expert affidavit stated merely that the errors and omissions set forth in the complaint constitute malpractice, without setting forth in the affidavit itself "at least one negligent act or omission claimed to exist and the factual basis for each such claim," as required by OCGA § 9-11-9.1, then the affidavit was insufficient. Defendants argue that the affidavits in this case do not assert they were negligent in failing to provide a sidewalk or traversable shoulder and that the assertion that the facts alleged in the complaint constitute malpractice is insufficient to meet the requirements of OCGA § 9-11-9.1.

The affidavits in this case offer a suggestion of what the defendants "might" have designed under the circumstances. Reading each affidavit in its entirety, however, it is obviously the affiant's opinion that the failure to provide the retaining wall they might have designed "or other appropriate safe alternative" to permit continuous pedestrian traffic along the road in front of the premises constitutes negligence and a failure to meet the appropriate standard of care. When the sufficiency of an expert affidavit is questioned by a motion to dismiss, the affidavit, like a complaint, should " 'be construed in the light most favorable to the plaintiff with all doubts resolved in [her] favor even though unfavorable constructions are possible.' " (Citation omitted.) Bowen v. Adams, 203 Ga.App. 123, 416 S.E.2d 102 (1992). Accordingly, in Bowen, this court held the affidavit sufficient even though it did not specifically opine that the procedures employed by the defendant doctor were negligent because it did contain the opinion that other medical procedures are "ordinarily" preferred and that the surgical procedure employed by the defendant was "premature" and caused injury to the plaintiff. Likewise, in this case the opinion that another specified design "might" have been used and that the failure to use such a design or another appropriate alternative constituted malpractice is sufficient to set forth a negligent act or omission as required by the affidavit statute. Thus the trial court erred in granting defendants' motions to dismiss on the ground that the expert affidavit was insufficient.

2. Having determined that the affidavit is sufficient to withstand defendants' motion to dismiss, we next address whether the complaint itself states a cause of action against these defendants.

(a) Defendants first argue the complaint was rightly dismissed because the complaint shows no privity existed between the plaintiff and defendants. The general rule applied by the Georgia courts is that one cannot be held liable for professional negligence to a party not in privity with the professional. See, e.g., Howard v. Dun & Bradstreet, 136 Ga.App. 221, 220 S.E.2d 702 (1975). "[T]he trend in Georgia [, however,] has been to relax the rule of strict contractual privity in malpractice actions, recognizing that under certain circumstances, professionals owe a duty of reasonable care to parties who are not their clients." Driebe v. Cox, 203 Ga.App. 8, 9(1), 416 S.E.2d 314 (1992). Exceptions to the privity rule have been carved out where injury to third parties is foreseeable. For example, in cases involving negligent misrepresentation of facts, liability extends "to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly.... [Otherwise] there will be no liability in the absence of privity, wilfulness or physical harm or property damage." Robert & Co. Assocs. v. Rhodes-Haverty Partnership, 250 Ga. 680, 682, 300 S.E.2d 503 (1983). ¹

In cases alleging negligent design by an architect, an exception to the rule against liability to third parties is recognized when the complaint alleges a defect which is imminently dangerous to third persons. "There are ... well recognized exceptions to [the] general rule [that an independent contractor is not liable to third persons for injury suffered as a result of the work once it is turned over to the owner]. One such exception is that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous. Another is that the contractor is liable where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons." Cox v. Ray M. Lee Co., 100 Ga.App. 333, 335, 111 S.E.2d 246 (1959). In Cox, this court reversed the trial court's dismissal of the complaint against a contractor and architect for bodily injuries allegedly sustained as a result of the dangerous design and construction of steps to a church building. Likewise, in Hunt v. Star Photo Finishing Co., 115 Ga.App. 1(1), 153 S.E.2d 602 (1967), a case brought for property damage due to the collapse of a roof, we recognized an exception to the general rule where the design of the roof was alleged to be so negligently defective as to be dangerous to third parties.

The exception to the privity rule for architectural defects which are imminently dangerous to third parties is consistent with the general law of torts in this state whereby "no privity is necessary to support a tort action; but, if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action...