December 11, 2009
ROBERT VITALE AND KAREN VITALE, PLAINTIFFS-RESPONDENTS,
DAVID W. SEIBERT AND PETRA SEIBERT, HIS WIFE, RE/MAX 1ST CHOICE, AND SCHNEIDER REAL ESTATE AGENCY, DEFENDANTS, AND ARCHITECTURAL MANAGEMENT, INC. AND RONALD FRANKE, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-2815-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 30, 2009
Before Judges Alvarez and Coburn.
Plaintiffs, Robert and Karen Vitale, sued defendant Ronald J. Franke, a licensed architect, and his employer, defendant Architectural Management, Inc. ("AMI"), for malpractice. The claim arose in connection with plaintiffs' purchase of a one- family house. In preparation for the closing of title, plaintiffs relied on an expert report prepared by Franke, on behalf of AMI. The report assured plaintiffs that despite the observable defects, the house was structurally sound. Contrary to Franke's assurances, substantial structural problems later appeared, and this action ensued.
Defendants moved for summary judgment, claiming that plaintiffs' experts had failed to articulate a standard of care violated by defendants. The judge denied the motion. The case was then submitted to binding arbitration, which resulted in a $30,000 award to plaintiffs. That award was confirmed by a consent judgment preserving defendants' right to appeal from the judgment on the sole ground that the judge erred in denying their motion for summary judgment. That appeal is now before us. We affirm.
Defendants do not take issue with the descriptions of the structural problems outlined by plaintiffs' experts.
Consequently, we will limit our description of the defects to a quotation from plaintiffs' architect, Eric Hafer:
I met with Robert and Karen together and they told me that they observed sloping floors in the Kitchen/Dining area, the center hall, the bathroom, and the rear bedroom on the second floor. On the lower level they observed sloping in the laundry room, bathroom and left side front bedroom. On the exterior of the building, they observed cracking in the bricks along the front left side of the house around the windows between the front stoop and the left corner. Also the sliding door from the kitchen area to the deck did not close properly. Robert told me that the basement floor was covered with carpet at the time, but that he could feel a slight change in floor level from under the carpet where the crack is located in the lower foyer. Sometime in October of 2002, Robert Vitale had his brother Paul walk through the house with himself and Mr. Seibert, the seller. According to his deposition, Paul observed many of the same things that Robert and Karen had mentioned. Paul also mentioned that many of the doors were not closing properly, specifically the lower level bathroom door was, "cocked to the right" and he noticed that the molding was also angled. In the laundry room he noted that the floor was angled toward the rear, left of the property and along the rear wall he noticed a seam where the floor separated from the exterior wall. Paul estimated the slope had a fall of 2"-3" easy over roughly 14 feet. Paul also lifted up the carpet in the foyer area at the bottom of the steps where he observed a crack in the slab running toward the rear of the house. He also attempted to lift up the carpet in the front left lower level bedroom but was only partially successful because furniture was preventing him from lifting the carpet completely.
What he was able to observe was separation in the concrete of 1/4" to 3/8". The width of the crack was similar to what I observed in November of 2005, the difference being that Paul noted that some of the concrete had actually protruded up a little at the crack as it tilted toward the rear in October of 2002. My observations were that the rear portion that is broken away has shifted down about 1/4" and is no longer protruding upward. It should be noted that Mr. Seibert was present when these cracks were observed and according to his testimony, Paul told both Robert and Mr. Seibert that they should get an engineer to sign off on the condition.
Paul Vitale, in his deposition, also made some observations about the exterior of the building. First he said that, "it looked like the roof was twisted". Paul also said, "I saw that the siding was crooked". When Paul was asked about the length of the siding, he said that there was nothing unusual about the length of the siding and indicated that he had seen it done that way before, referring to extending the siding along the sides of the house almost to grade, covering several courses of the block wall. Although this is done sometimes, in my opinion it is not a common practice. In fact there are eight other houses on Haddon road of the same model as the Vitale's house. All eight do not have the siding covering the block on the side walls. Of the nine similar houses in a row, the Vitale's house is the only one that has siding lowered to cover the block. In my opinion, this was done to cover the settlement damage to the block. It should also be noted that the block on the interior was covered with a heavy vinyl wall covering, installed in a way that conceals joints and cracks in block walls. Because it is a pliable vinyl, it masked a lot of the settlement damage from potential buyers.
Based on that evidence and his own observations of the house, Hafer wrote that "it is clear . . . that the settlement damage that was visible in October of 2002 [when Franke made his inspection] was of such a significant nature that any responsible licensed architect walking through that house, should have required a full engineering study and soils testing." He then went on to observe as follows:
Settlement of 3" in 14 feet should have been an immediate red flag. Normal tolerance for a concrete slab is 1/4 " in 10 feet. In his letter dated November 8, 2005 Mr. Franke indicated that, "I see no large cracks that indicate that the corner of the building would break off". In fact, based on the observations of Paul Vitale, it is my opinion that the rear corner of the building at the foundation and slab had already broken off at the time of Mr. Franke's letter. Mr. Seibert was present when Paul Vitale exposed a large crack in the slab under the carpet and it is only reasonable to assume that Mr. Seibert made Mr. Franke aware of this crack since this was the main reason why Paul Vitale insisted on an engineering report. I understand Mr. Franke's theory that if the house has settled down to the sandy soil substrate, then it will not settle any further. The problem with this is that as you walk through the house, it is apparent that there is no indication that it has settled to the substrate. The damage was too severe to say what Mr. Franke said, "The house has settled as a unit into the substrate". The fact that on 1/3 of the house at the rear left had settled, immediately dismisses the theory that it has settled as a unit. I could understand someone coming to that conclusion if they only observed the house from the outside. The siding covered up the damaged block, many of the windows had been recently replaced with vinyl windows, and the roof twisting could be attributed to several other causes. However, as soon as the architect walked into the laundry room and observed the slant down to the corner, it should have been immediately apparent that there was a serious problem. There is no way that an architect observing that condition should have concluded that the house settled as a unit. It was obvious that the corner is breaking away.
Towards the end of his report, Hafer noted that "when a condition arises that involves structural failure and settlement, the architect needs to call in the engineers." Consequently, he concluded that Franke's failure to follow that course was negligent.
Defendants cite the following portions of Hafer's deposition in support of their claim that he was relying on his personal opinion rather than a standard of care applicable to architects in these circumstances:
Q: Okay. Are you aware of any standards held by the consensus of the architectural community that support your opinion or your questioning of Mr. Franke's experience and qualifications to render the opinion that he did based on his work at the Vitale residence?
A: Do I know of a written standard. No.
Q: Is there anything amongst the architectural community that says an architect who is licensed without an architectural degree doesn't have the experience, education or training to carry out the type of service that Mr. Franke carried out?
A: Not that I'm aware of.
Q: So now what standard, written or otherwise, did he violate in issuing a report that said based on the homeowner statement of 20 years this condition has existed, I don't see any large cracks, it's uniform settlement and I don't think it is going to settle any further? What standard, tell me. You got to tell me a standard. There's got to be a standard in the [industry] that supports your opinion. If not, and it's your personal opinion that's fine, I'll go with that. But I want to rule out any standards that exist. I want to know if there is anything published by the AIA. I want to know if there is any standards in the field, architect or otherwise, I want to know if you've taken any seminars, any classes, I want to know if there is rules and regulations governing architects, I want to know if there is anything that he did that said what he did was a violation of the standard of care?
A: I can't come up with anything at this moment.
Q: What standards, written or otherwise, are you relying upon in support of your opinion in your report as I read it that Mr. Franke should have called in an engineer to evaluate this condition?
A: The standard of reasonableness is that there was six inches of settlement, three inches of settlement, substantial movement in the house that was easily observed. There were large cracks in the foundation that warrant the fact that there is something going on below.
Q: I want to know what standard. Where in your practice, where written down anywhere, where as a generally held consensus of the industry is it required that he should have done that?
A: I can't cite a source right now.
In addition, Hafer was asked this question:
Q: Do you have a consensus held amongst the architectural community, an unwritten standard that supports your opinion?
A: Well, other than an architect is a generalist. And when you get into issues that are more specific, you hire the expert. And you know, in this case with substantial settlement in a building, it clearly required input by a structural engineer or soils engineer.
The governing principles of law are well-settled. In a professional negligence case, the standard of care must be established by expert testimony. Taylor v. DeLosso, 319 N.J. Super. 174, 179 (App. Div. 1999) (citations omitted). The expert's opinion "'must relate to generally accepted . . . standards, not merely to standards personal to the witness.'" Id. at 180 (quoting Fernandez v. Baruch, 52 N.J. 127, 131 (1968)). Put differently, the expert must provide testimony "upon which the jury could find that the consensus of the particular profession involved recognized the existence of the standard defined by the expert." Taylor, supra, 319 N.J. Super. at 181. Thus, "[i]t is insufficient for . . . [the] expert simply to follow slavishly an 'accepted practice' formula; there must be some evidential support offered by the expert establishing the existence of the standard." Ibid. Reference, however, to "unwritten custom or practice indicating that the consensus of the [relevant professional] community recognizes a duty" can suffice. Ibid. Plaintiffs concede that Hafer did not cite any written authority in support of his opinion, but they contend that his testimony did rely on the unwritten custom or practice indicating a consensus on an architect's duty in the circumstances of this case.
In evaluating this claim, we emphasize the procedural context in which the issue arose; namely, on a motion for summary judgment. On such a motion, the opposing party is entitled to have the facts and inferences viewed in the light most favorable to it. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
The essence of Hafer's opinion, as expressed in his letter, is that "when a condition arises that involves structural failure and settlement, the architect needs to call in the engineers." He clearly repeated that view during his deposition in the portion omitted from their brief by defendants. As quoted above, he was asked whether there was a "consensus held amongst the architectural community, an unwritten standard that supports your opinion?"; and he replied, "Well, other than an architect is a generalist. And when you get into issues that are more specific, you hire the expert." He then added that when an architect observes "substantial settlement in a building, it clearly required input by a structural engineer or soils engineer."
Defendants pressed Hafer to cite a source for this standard. And they rely on Hafer's statement that "I can't cite a source right now." But in this context, an absence of reference to a source did not provide adequate support for defendants' contention that Hafer was merely expressing a personal opinion. After all, by definition, there is no specific source for a an unwritten consensus regarding professional standards. Giving plaintiffs the favorable inferences to which they were entitled, Hafer's testimony indicated with reasonable clarity that the consensus of architects was that when confronted with substantial structural defects, as was unquestionably the situation here, the standard of care was to recommend reference of the problem to engineers.
We cannot imagine how Hafer could have expressed this relatively self-evident proposition with any more clarity than he did.
Therefore, we find no basis for overturning the trial judge's order denying summary judgment.
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