Siteman v. Woodward-Clyde & Associates, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: GUNN
• Citation: Siteman v. Woodward-Clyde & Associates, Inc., 503 S.W.2d 141 (Mo. App. 1973)
• Decision Date: 02 October 1973
• Docket Number: WOODWARD-CLYDE,No. 34697,34697
• Parties: Alvin SITEMAN and Ruth Siteman, Plaintiffs-Appellants, v.& ASSOCIATES, INC., et al., Defendants-Respondents. . Louis District. Division Two

Page 141

503 S.W.2d 141

Alvin SITEMAN and Ruth Siteman, Plaintiffs-Appellants, v. WOODWARD-CLYDE & ASSOCIATES, INC., et al., Defendants-Respondents.

No. 34697.

Missouri Court of Appeals, St. Louis District. Division Two.

Oct. 2, 1973.

Motion for Rehearing and to Transfer Denied Nov. 13, 1973.

Application to Transfer Denied Dec. 10, 1974.

Blumfeld, Kalishman, Marx & Tureen, Jerome Kalishman, St. Louis, for plaintiffs-appellants.

Stinson, Mag, Thomson, McEvers & Fizzell, John C. Noonan, Kansas City, and Lewis, Rice, Tucker, Allen & Chubb, R. Richard Straub, St. Louis, for defendants-respondents.

GUNN, Judge.

Action by landowners against engineers for professional malpractice in the preparation and submission of a report on soil conditions and foundation requirements at the site of a proposed building development. Defendant engineers pleaded and submitted plaintiffs' contributory negligence in failing to study the soil report. Verdict and judgment were for the defendants and plaintiffs appeal. The issues raised by appellants on review relate to whether the trial judge erred in giving or failing to give certain instructions. We affirm the judgment.

Plaintiff Alvin Siteman ¹ is a real estate developer in the Clayton Missouri area. With his wife, Ruth, Siteman acquired a ninety-nine year lease on the land now occupied by the Clayton Bank Building for the purpose of constructing and operating a building thereon. The Siteman Organization, Inc., a corporation in which Siteman was majority stockholder and president, acted as supervising agent for the project during its construction and operation. In 1965, Siteman directed defendant to make two test borings and a preliminary analysis of soil conditions in the project site, which was done. Defendants were then engaged to prepare a full soil conditions report which was submitted to the Siteman Organization, Inc., in February, 1966. The report consisted of twenty-one pages of technical data, drawings and exhibits and a narrative of eighteen pages of conclusions and recommendations. The substance of the report was that at the project site the plaintiffs could expect to find, in order, overburdened soils, a boulder and cobble layer, a lower and heavier limestone layer, several one to three foot thick ledges of limestone and then various types of hard shales. The narrative portion of the report indicated that the overburdened soils could be excavated with standard earthmoving equipment; that the upper and lower formations of limestone could be excavated by power shovels or heavy rippers ('ripping' is a technique of excavation used to tear out sheets of hard rock by the use of power equipment, such as a bulldozer, equipped with an extension part containing metal teeth which grip the material and rip or tear it loose); that some blasting might be required to remove the more massive limestone ledges. The narrative portion of the report did not state how the shale might have to be removed. The report was read by Siteman, Leonard Adreon, a Vice President of the Siteman Organization, Inc., and Harold Tepper, an engineer and Vice President of the Siteman Organization, Inc., in charge of consultation programs and project engineer for the Clayton Bank project. Siteman, a graduate of Massachusetts Institute of Technology, although not an engineer or soils expert, stated that he read the narrative of the report but did not read the detailed technical material, did not consult with defendants or Harold Tepper for assistance in understanding the report. Siteman testified that some of the facts in the report were meaningless to him.

The initial architect's estimate for costs of excavation, footings and back-filling was $371,184.70. H. B. Deal Construction Company, the low bidder for the excavation, submitted an excavation bid of $261,000.00. Without attaining assistance in the interpretation of the technical information in the report, and armed with the report, Siteman entered into negotiations with Deal Construction Company to reduce the cost of the excavation and was successful in getting a reduced bid, from $261,000 to $171,000. Further negotiations continued between Deal and Siteman on the excavation expenses and a final agreement was reached covering excavation costs for $141,000, if Siteman would take the risk of moving all excavation materials that could not be removed by standard earth-moving equipment. Siteman testified that it was his understanding in the negotiations that if plaintiffs 'would take the risk of the removal of any materials in the hole in the excavation that could not be moved by standard earth-moving equipment, then the price would be $30,000 less to us. If, on the other hand, we would elect to let the contractor take all the risk to excavate to the bottom whatever materials were there, we would have to pay them $30,000 more.' Siteman elected the first alternative and accepted the risk. The contract provided that the contractor would be paid extra for the removal of certain subsurface materials and specifically for the removal of certain materials, including shale, which could not be removed with a front-end loader or particular type of power shovel and had to be drilled and blasted for removal. In reaching his decision, Siteman stated that he relied on the report, although the risk of excavation was made without interpretation of the report by any expert and many of the report's terms meant nothing to him. It was his testimony that since the report said nothing about shale being any problem to excavate, he concluded that it would be no problem. Siteman testified that he had had no previous experience or difficulty in removing shale in other developments in the Clayton area with which he had been involved and consequently believed that standard earth-moving equipment would be sufficient for removing the shale. Leonard Adreon, although not an engineer or soils expert, also concluded that since the report made no mention about the shale, its removal would be no problem. However, Harold Tepper, Vice President of Siteman Organization, Inc., and engineer for the project, testified that he was not misled by the report and from its reading concluded that something more than ordinary means would be necessary to excavate the shale. He further testified that at the contract negotiations between the contractors and officers of Siteman Organization, Inc., prior to starting the excavation project the subject of excavating the hard shale was discussed and it was determined that the shale would be difficult to remove. Mr. Tepper had also advised the Siteman Organization to accept the contractor's $30,000 offer and not take the risk of excavating the material. His advice was not followed. Mr. Tepper also expressed the opinion that blasting was not necessary for the removal of the shale; that efficient use of front-end loader equipment to rip the shale would have been sufficient. Defendants offered to interpret the report for the Siteman Organization, Inc., but were not requested to do so, neither were they contacted or asked to participate in the excavation contract discussions. During the excavation, no problem was encountered in removing any of the materials, including the limestone, until the hard shale was reached. After demonstrations by the contractor to Siteman that normal earth-moving equipment would not remove the shale, it was determined by the contractor that it would be necessary to blast and rip it with other than the standard earth-moving equipment referred to in the contract in order to excavate the hard shale. The shale was removed by blasting on a time and material basis in accordance with the contract negotiated by which Siteman had agreed to take the risk of excavating the certain materials, including shale, referred to in the contract. The contractors for Siteman and his soil expert testified that blasting was necessary for the removal of the shale and that ripping with a front-end loader of the type specified in the excavation contract would not remove the shale.

The evidence by witnesses for plaintiff and defendants was generally that the method of removing shale of the type encountered by blasting had not been utilized in other construction site areas in Clayton immediately adjoining the Clayton Bank project. The Superintendent of the project for the excavation contractor acknowledged that defendants' report gave warning to them of the shale's hardness and that it would have to be ripped to be removed; that the only true test for determining the type of equipment necessary to remove hard shale would be the use of equipment on it after it had been uncovered in the excavation. Plaintiff's Soils expert Engineer, Henry Reitz, testified that the report was misleading for failing to state how the shale should be removed, but he admitted that there was no definite rule requiring that specific excavation problems be pointed out in a soil report. Mr. Reitz further testified that in his opinion as a soils expert, an owner who did not understand all of a soils report would not be exercising ordinary care if he did not seek consultation from experts on the report.

Witnesses for the defendants testified that they were unaware of any necessity for blasting shale in the Clayton Bank area although similar shales nearby had required ripping; that standard earth-moving equipment of the type referred to in the construction contract had been satisfactory for the removal of shale on adjoining projects.

The added excavation costs above the contract price negotiated by Siteman and Deal for excavation amounted to $191,480.19. Thus, the ground work was laid for this litigation: the plaintiff urging that if the report had been clear with regard to the difficulty of shale removal, he would not have taken the risk or excavation for $30,000 less on the excavation bid and thereby have saved $191,480.19--the defendants countering that Siteman could have avoided his...