EVIDENCE AND EXPERTS
Construction Experts and Res Ipsa Loquitor: Bridging
the Evidentiary Gap
By Jeffrey P. Aiken
There has been scant authority on when expert testimony1
is required to establish a prima
facie case for breach of a construction contract. The general rule in civil litigation has
been that expert opinion evidence is required, as opposed
to simply permissible, whenever the subject matter is beyond the common knowledge
or ordinary comprehension of
Jeffrey P. Aiken
lay jurors. Most often this involves unusually complex or
esoteric issues, such as those encountered in professional malpractice claims against architects, engineers, and the like. It is
obvious that expert opinion evidence is essential whenever the
jury would otherwise be left to speculate such as employing
abstract or theoretical probabilities.2 However, that does little
to address the particular question of when expert opinion evidence is required, desired, or precluded in particular situations. Indeed, at the opposite end of the spectrum, the doctrine of res ipsa loquitur may apply to obviate the plaintiff’s
burden of proving a negligent act on the part of the party that
controlled the instrumentality of the plaintiff’s losses, much
less establishing liability through expert testimony.
This article explores the continuum of when expert testimony is prohibited (or unnecessary), permissible, or required for construction claims. Most cases focus only on the
alternatives of either requiring or not requiring, or permitting or not permitting, expert opinion evidence to support
a claim or issue.3 By looking at these three situations from
a distance, the water gets rather murky. As one court observed: “[w]hile it is often difficult to draw the line between
logical inferences [which a jury is permitted to make] and
speculation, it nevertheless must be drawn.”4
The central factor in answering each of these questions depends on the degree of complexity involved in the
required analysis of a factual issue in relation to the ordinary experience and comprehension of lay jurors.5 Viewed
in this fashion, general conclusions can be reached as follows: expert evidence should be precluded when there is
no complexity involved6 such that the jury can decide the
matter based on its own well-founded knowledge,7 experience, and comprehension (including logical inferences from
Jeffrey P. Aiken is the senior member of Whyte Hirschboeck
Dudek S.C.’s Construction Practice Group in Wisconsin,
where he focuses on construction litigation, arbitration, and
mediation (both as a neutral and party representative).
the facts presented or those within the realm of common
knowledge8) as competently as a purported expert. Expert
testimony should be permitted when there is some complexity subject to resolution through analysis and reasonable
inferences the jury may draw from the evidence9 without
the need for expert testimony, but for which an expert is of
assistance due to the expert’s more detailed and experienced
knowledge of the subject in question. Finally, such opinions should be required when the complexity is such that
the matter cannot be resolved to a reasonable certainty10 by
a jury’s own logical inferences and other analysis without
engaging in pure speculation. In other words, the character
and context of the evidence will be controlling factors.
Although construction disputes are frequently resolved
through the use of experts, there is a paucity of authority
in published construction decisions concerning the necessity
or permissibility of expert testimony generally. Accordingly,
the analysis below borrows from other areas of the law as a
means of establishing the general rules set forth above.
The Expert Admissibility Continuum
Generally speaking, an expert is used because
[t]he expert has something different to contribute. This
is a power to draw inferences from the facts which a
jury would not be competent to draw. . . . the inference
must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of
the average layman.11
Expert testimony is the testimony of persons who are
particularly skilled, learned, or experienced in a particular
art, science, trade, business, profession or vocation, a thorough knowledge of which is not possessed by the public in
general.12 It is almost universally recognized that “[i]f the
court or jury is able to draw its own conclusions without
assistance of expert opinion, admission of such testimony
is not only unnecessary but improper.”13 In fact, it has been
said that “[t]he fact that the expert witness may know more
of the subject and better comprehend and appreciate it than
the jury is not sufficient to warrant the introduction of his
testimony.”14
As summarized by one court, “[t]he general rule permits
a witness who is experienced in technical matters and qualified to do so, to give his opinion in a matter which is not
one of common knowledge, although it involves an ultimate
fact to be finally decided by the jury.”15 If the jury is competent on its own to resolve an issue, such as reducing gross
future loss to present value without the aid of an expert so
that actuarial or mathematical expert testimony is not a
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 1
prerequisite, the better practice is to present the jury with
such expert evidence as an aid to its analysis.16 Such a permissible expert opinion, however, even if uncontroverted,
does not mean the jury is required to adopt it.17
To distinguish between cases where opinion evidence is
optional versus mandatory, the former should be available
where (i) there is complexity subject to resolution through
analysis and reasonable inferences the jury might draw from
the evidence without the need for an expert (i.e., within the
jury’s competence), but (ii) such evidence would be of assistance due to the expert’s more detailed and experienced
knowledge of the subject in question. Thus, expert testimony is generally required when the matter is beyond the
knowledge, comprehension, and experience of a layperson,
involving unusually complex or esoteric issues.18 The most
common situation where such evidence is essential is in
the professional malpractice area where the design professional can be sued in either tort or contract. It is generally
recognized that to establish a claim for breach of such a
design contract, expert testimony is necessary to establish
negligence of that professional19—absent obvious situations where res ipsa loquitur could apply or only common
knowledge and experience to judge the matter are required.
In short, the jury cannot draw logical inferences to a reasonably certain conclusion that such a professional breached
his contracted obligation merely from a bad result based on
the jurors’ ordinary experience and knowledge. One reason
for adopting such a position is that there is an “inescapable
possibility of error which inheres in such services.”20
It seems logical that the same rationale should apply to
establishing the performance standard for any occupation or
endeavor, regardless of one’s technical standing as a professional for tort purposes, where the standard is not otherwise
clearly evident to an ordinary lay juror.21 Generally speaking, the performance standard for virtually any construction
or other service contract is that the services will be rendered
in a workmanlike manner.22 It is commonly recognized that
expert testimony is required to establish what is or is not a
“workmanlike” performance if not otherwise patently obvious using a jury’s ordinary knowledge and experience.23
Proof of what is workmanlike is no different from proof of
custom, practice, and usage in the trade or industry.
The need for expert opinion evidence on contract damage causation should be handled in the same manner as it is
in tort cases, such as those involving future medical expenses
or future pain and suffering.24 In other words, if a causation finding would involve speculation as opposed to merely
drawing a reasonably certain inference, an expert opinion
should be needed. Whether a particular type of damage was
a probable, as opposed to merely a possible, result of the
breach as of the time of entering the contract (so as to satisfy the foreseeability requirement for contract damages)25
may require expert testimony as well.
Federal Court Standards
Under Federal Rule of Evidence 702, if scientific, technical
or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an
opinion if “the testimony is the product of reliable principles
and methods”26—a requirement not found in some states’
rules of evidence.27 The trial judge is to make a “preliminary assessment of whether the reasoning or methodology
underlying the [expert’s] testimony is scientifically valid and
of whether that reasoning or methodology properly can be
applied to the facts in issue.”28 If not, the opinion evidence
is not relevant and is not admissible.29 Although the facts an
expert relies upon do not have to be admissible, they must be
of a type reasonably relied upon by experts in the particular
field in forming opinions.30 Consequently, before receiving
expert testimony, a federal court is to consider a range of
factors in determining reliability and relevance depending
on the nature of the issue.31
It is obvious that expert opinion
evidence is essential whenever the
jury would otherwise be left to
speculate such as employing abstract
or theoretical probabilities.
Rejection of proffered expert testimony in federal court
is supposed to be “the exception rather than the rule.”32
However, the differences between federal expert standards
requiring reliability in addition to relevance, and state standards that only focus on the latter, should be considered.
For example, even assuming these federal opinion criteria
are merely illustrative and not exclusive as to admissibility,33
one might consider it difficult to craft a thorough reliability
test in fields lacking a coherent body of promulgated industry materials. Although gaining expertise through practical
industry experience outside of traditional scientific fields
may, at first blush, be difficult to reconcile with the Daubert34
reliability criteria (which are to apply not only to scientific
testimony, but to all expert testimony),35 the Supreme Court
has substantially broadened the permissible considerations
for federal case experts with such expertise. This was accomplished in an example of how reliability might be established
to qualify a perfume tester.36 Viewed in this fashion, one
might justifiably conclude that federal and state standards
are not all that different despite the inclusion of a reliability
factor in Rule 702.
Burden of Proof for a Prima Facie Case
Whether an expert opinion is “required” is essentially a
question of whether a party can establish a prima facie case
without the use of expert testimony. It is basic hornbook
law that a claimant has the burden of proof to establish a
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 2
prima facie case. A prima facie case in civil matters must
be established by a preponderance of the evidence and has
been characterized “as one ‘established only when evidentiary facts are stated which if they remain uncontradicted . . .
resolve all factual issues in [a] . . . party’s favor.’ ”37 Although
burden of proof is oftentimes characterized as including
both a burden of production and a burden of persuasion,
the initial focus for purposes of establishing a prima facie
case is on the burden of production.38
Rejection of proffered expert
testimony in federal court is supposed
to be “the exception rather than the rule.”
A “party can be required to aver and prove negative allegations, especially when the allegation is an essential part
of the party’s claim. For example, . . . a party alleging failure
to perform has the burden of proof.”39 There is no question
that a defendant bears the burden of proving affirmative defenses,40 including excuses for nonperformance41 or failure
to satisfy conditions for performance.42 However, various
cases have held that a claimant has the burden of proof of
excluding other potential causes from consideration where
multiple causes may have contributed to a result.43 This oftentimes occurs in construction cases where there are claims
of cost overruns and the claimant attempts to prove its
claim under what is called a “total cost” method, which, in
effect, avoids the need for a claimant to allocate causation to
particular damages.
When multiple causes contribute to a project overrun,
the “total cost” approach is disfavored44 because there is
not a basis “for even an educated guess as to the increased
costs suffered by plaintiffs due to that particular breach or
breaches [by the defendant] as distinguished from those
causes from which defendant is contractually exempt from
responding in damages.”45 Some courts use a four-part test
for use of the “total cost” method, the last element of which
is proof by the claimant that it was not responsible for the
added costs.46 Thus, it has been held that “[i]n complex situations that may involve multiple [parties], the ‘plaintiff must
prove not only that he or she was not liable for the extra cost
in this situation but that the defendant was responsible.’ ”47
In short, a claimant is required to bear the allocation burden when there are shared or interdependent performance
obligations.
Even though it would be relatively easy to conceptually
transfer the burden of production on the issue of breach by
nonperformance or deficient performance to a defendant by
characterizing it as a matter of defense, rather than a burden
for the claimant, such an approach sidesteps the threshold
question of whether the claimant has satisfied its burden to
establish a prima facie case in the first place. Transferring
the burden to a defendant to prove the absence of nonperformance, in addition to its existing burden of proving any
excuse for nonperformance, seems unjustified except in unusual circumstances—such as the defendant never showing
up to perform at all or liquidated damages being at issue.48
Federal pleading standards under the rules are substantially equivalent to those under state law: namely, “a short
and plain statement showing that the pleader is entitled
to relief.”49 Recently, this standard was clarified by the Supreme Court to mean the pleading must contain sufficient
factual allegations to permit the court to find that the claim
is facially plausible, including the ability to reasonably infer
that the opponent is liable.50 In addition, the court has since
held that a complaint must stand on its own at the pleading stage, and inadequately pled allegations may not survive
pending discovery.51
The potential problem this creates is that oftentimes the
information needed for scheduling experts to work their
magic will depend on results of discovery, so the proverbial chicken-and-egg problem arises. Typically, the more lax
pleading requirements in state court would not present such
a problem because following the filing of a notice pleading,
the claimant is virtually free to kick off the discovery needed
to serve as the foundation for an expert opinion. Only if
challenged on a motion for summary judgment would state
court litigants potentially need an expert’s opinion in place
before they would have to establish a prima facie case from
an evidentiary point of view.
If the more stringent federal pleading standards are followed, it may result in early dismissal of claims dependent
upon expert opinion evidence that can only be obtained
through discovery to establish breach, causation, or damages.
Defendants may, therefore, gain some procedural advantage
in federal court, where the court may insist on more exacting pleadings. However, federal (and many state) rules require
that the attorney signing the pleading verify by her execution
of the pleading that “the claims, defenses, and other legal
contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing
law or for establishing new law; [and] . . . the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. . . .”52
This latter provision may provide an escape route from
dismissal at the pleading stage. In other words, if expert
opinion evidence is required to establish a prima facie case, a
claimant that cannot plead the existence of such an opinion
in its complaint should consider identifying explicitly what
discovery will uncover that will be relied upon in a forthcoming expert opinion and what that opinion will entail.
This affects, as well, the scope of a prefiling investigation.
Application of Res Ipsa Loquitur
To this point, we have addressed the requirement of expert
testimony to establish a prima facie case in construction litigation. Are there circumstances in which the occurrence of
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 3
construction-related damages in an otherwise complex evidentiary setting may obviate expert testimony? The answer
is yes, if the doctrine of res ipsa loquitor can be invoked. In
short, the doctrine may be used to fill an evidentiary gap
when proof of a construction claim might appear to require
expert testimony, but the circumstances of the claim are
such that direct evidence to allow formation of an expert
opinion is not available or unnecessary.
The basic concept of res ipsa loquitur is that the result
(i.e., injury or damage) would not occur if one with exclusive management and control of an instrumentality uses
it properly.53 It is not a principle of substantive law but of
evidence,54 allowing fact finders to draw certain permissible
inferences based on either their own common knowledge or
information provided by an expert.55 These inferences include that a party breached its legal obligation in performing
an identified activity;56 and that such breach was the cause
of the damage or injury (i.e., the result).57 Generally speaking, a claimant cannot rely upon the principle when the
facts surrounding the event (such as an accident) are known
or reasonably available because, in such instances, there is
nothing left for an inference.58 In other words, it is “not to
be invoked to overcome evidence, but to be applied in its absence,”59 although this is far from a widespread proposition.
The possibility of the event happening from an act of
God, for example, or some other cause such that more
than one reasonable inference is permissible, most often
precludes its application60 unless additional evidence is adduced to eliminate the causal connection to such other possible causes.61 Sometimes, courts and commentators have
couched the discussion in terms of probabilities, not reasonable possibilities,62 although this would seem to be a distinction without much of a difference.
The traditional two requirements are exclusive management and control of the instrumentality being vested in the
defendant, and the damage would not have occurred in the
ordinary course of things if the instrumentality was used
with proper care.63 In addition, some states add further requirements such as the absence of explanation by the alleged wrongdoer64 (although this would not seem to be a
requirement for purposes of establishing a prima facie case),
the absence of fault on the injured party,65 or the defendant
has superior knowledge or means of information as to the
cause,66 which is akin to one of the factors for assigning the
initial burden of proof. In fact, these latter two elements
have been combined with the two traditional requirements
as a prerequisite for use of res ipsa in any case.67 At least one
other court has required the duty to be one of “the highest
degree of care” before res ipsa could be used.68 Because res
ipsa is a principle of evidence and has been characterized as
nothing more than a commonsense appraisal of the probative value of circumstantial evidence,69 it should be equally applicable to construction claims70 as a matter of basic
jurisprudence.71
Notwithstanding statements suggesting the doctrine
was developed solely as “an exception, or perhaps more accurately a qualification, of the general rule that negligence
is not to be presumed but must be affirmatively proved,”72
there is no reason for res ipsa not to be applicable to construction contract claims. Res ipsa has already been extended outside pure negligence and professional malpractice
cases, including strict liability cases,73 criminal cases,74 and
admiralty cases involving tug-tow contracts.75 The same rationale can certainly be applied to any breach of contract
claim because it too must be affirmatively proven, including
proof of the other party’s failure to have satisfied its contractual obligation.76 Some commentators have even referred to
a “contractual res ipsa”77 or contract damage equivalent.78
Litigants have occasionally advanced what has been called
a “res ipsa loquitur-like theory of contract liability”79 or arguments of similar import.80 Without necessarily engaging
in a detailed analysis of res ipsa as an evidentiary inference
or presumption, federal courts have nevertheless applied res
ipsa in a wide range of other cases, from state secret81 and
excessive force claims under section 1983,82 to immigration
appeals83 and usury cases.84
Are there circumstances in which
the occurrence of an accident in an
otherwise complex evidentiary
setting may obviate expert testimony?
Extension of res ipsa into contract claims is understandable in light of the nearly pervasive treatment by the courts
of an unintentional breach of contract as “negligence”85
when, more accurately, contract breaches should be classified either as intentional86 or unintentional. Negligence is
most often understood to be a tort arising from a common
law obligation of due care independent of any contractual
obligation.87 Such a common law duty may flow from a
contractual undertaking as in cases of personal injury or
damage to property other than the subject of the contracted
work.88 But the unintentional breach of contract does not
necessarily constitute an act of negligence unless, of course,
negligence is redefined to mean a failure to exercise the same
degree of skill and care in the performance of a contractual
obligation that an ordinary prudent contractor would exercise under the same or similar circumstances (i.e., taking
into account the industry custom and practice pertinent to
performance of the contractually specified work and materials). Yet so far no court has apparently framed its negligence
characterization of an unintentional breach in this fashion.
Despite the judicial development of the “economic loss
doctrine”89 to limit the intrusion of tort into contract law,
there are other reasons for avoiding characterization of an
unintentional breach as negligence. Foreseeability at the time
of contracting is a potential defense to a contract damage
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 4
claim, whereas foreseeability in traditional negligence cases
is at the time of the act or omission. In addition, the scope
of available damages is much broader in tort negligence
cases, specifically the possibility of punitive damages and
the possibility of a different causation requirement. Because
parties are entitled to intentionally breach their contracts
without exposure to punitive damages90 while retaining a
foreseeability defense to various items of damage, there is
no reason why an unintentional breach should not be on
the same footing.
If negligence is not redefined for application to contract
claims as suggested above, then a problem arises when the
performance standard is below or above the customary practice in the industry. Absent specification of a standard in the
contract,91 customary practice would apply as the standard
for a contractor’s performance.92 Certainly, a claimant asserting an unintentional breach of contract should not be
required to prove a failure to abide by standard practices
when the contractual standard is less, nor should proof of
variance from standard practice establish breach of a much
higher specified performance standard.
Negligence is most often understood
to be a tort arising from a common
law obligation of due care independent
of any contractual obligation.
If a claimant can show that the contractual performance
was solely within the management and control of the other
party, and that the result would not have occurred had there
not been a breach of the contractual obligation (such that
there is only one reasonable inference to be drawn), then the
claimant should be able to establish a prima facie case of
both breach and damage causation by proving the result or
lack of result.93 However, the converse also should be true.
If there is more than one reasonable inference to be drawn
from the result as to its cause, such as the claimant’s contribution to the result due to shared performance obligations,
then the claimant should be required to do more than merely point to the result to establish its prima facie case.
This is precisely what courts have done when confronted
with interdependent performance obligations in situations
that are very analogous to construction claims. Specifically,
res ipsa has been rejected as a means of proving breach and
causation in a contract setting due to lack of exclusivity over
what would be the “instrumentality” in the tort vernacular.94
In other words, one cannot look to the result for purposes
of establishing a breach of contract or damage causation
when both parties are involved in performing the overall
project. In those situations, expert testimony is required to
establish at least the predicate facts.95 This is because it is
equally possible both parties caused or contributed to the
project deficiency and financial loss, or the claimant alone
may have done so through its own voluntary act.96 Consequently, the absence of expert opinion evidence should be
fatal to a prima facie case under such circumstances.
The very function of the economic loss doctrine in some
states is to insist that a party to a contract that includes a
standard of care rely on that standard (and not a tort standard) to establish its claim.97 Where the contract standard
is effectively no different from a tort standard, there is no
reason res ipsa loquitor should not be applicable.
Res Ipsa Implications for Construction Cases
There are essentially two main causes for construction
claims, aside from payment default: first, the project is delayed, impacting an owner or contractor; and, second, the
project contains deficiencies of one kind or another. Res
ipsa has application to both.
In many delay cases, it is common to engage forensic
scheduling experts to unravel the sequence of who was
supposed to do what and when, and what, if any, damage
resulted from a particular activity or project disruption, taking into account such concepts as critical path, float, and
causation (e.g., windows) analysis—subjects far beyond the
purview of laypeople.98 In situations involving a traditional
design-bid-build project where the owner’s architect is supplying the design documents, it seems that an expert would
be required to establish a prima facie case in all but the most
simple of delay damage claims by an owner or contractor. Again, the controlling concept is whether the jury can
draw reasonable inferences without the aid of an expert. If
an expert would be helpful, but not essential, then use of a
forensic expert is permissive and not essential for a prima
facie case.
If, on the other hand, a design-build contract is involved,
then the design-contractor would be in sole control of the
instrumentality (i.e., project), and an owner should be able
to rely on res ipsa to establish a prima facie breach if there
is a time-of-the-essence clause in the contract.99 If not, then
a forensic expert would be needed to establish a reasonable
time for completion100 unless such time is clear from the circumstances. Yet, merely establishing breach via res ipsa does
not necessarily absolve an owner of the need for an expert
on damages even when time is of the essence. Obviously, if
liquidated damages are in issue, there should be little need
for an expert on damage causation. The same may be true
as well for direct damages such as loss of revenue from a
delayed project—again, depending on the complexity of the
causation analysis required to reach reasonable certainty in
that conclusion.
If an owner or contractor proffers an expert on a subject
in an effort to overtry liability in hopes of influencing the
damage award, a motion in limine to bar such testimony
may be available on the ground that such an expert opinion is unnecessary. Success of such a motion will depend on
whether the evidence is readily comprehensible to the jury
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 5
without an expert opinion, so that opinion evidence would
invade the province of the jury as the finder of facts.
Even though a jury is not required to follow an expert’s
opinion,101 an owner-claimant is forced from a practical
point of view to engage its own expert. Otherwise, it runs
the risk that the court may find the lack of an owner-expert to be fatal, should it be determined that the matter is
overly complex for a jury. For smaller damage claims, this
may obviously be a prohibitive burden for an owner from a
monetary perspective. In such situations, the owner’s counsel would be well advised to pursue relief from this burden
of production by asserting that the contractor possesses the
ease and access to proof much more so than the owner, so
as to transfer this burden to the contractor.102
When it comes to fast-track projects of one form or
another, the principles underlying res ipsa would dictate
the need for a forensic expert in all but the most simple of
cases. The reason should be obvious for both breach and
causation determinations. A jury, using ordinary experience, is clearly unable to decipher the scheduling impacts of
various acts or omissions on such basic determinations as
to whether they were on a critical path or within float. Similarly, without expertise in scheduling analysis, a jury could
not determine with reasonable certainty what acts or omissions caused what delay damages.
Insofar as delay damage causation is concerned, unless
readily apparent to or comprehensible by a layperson, an
expert’s opinion should be required in any situation where
such an opinion is required to establish a breach. This would
be true for nonliquidated damages arising from a project
with joint owner-contractor performance: namely, designbid-build and fast-track projects.
When it comes to defect claims, the need for expert testimony will depend to a large degree on the contract structure. First of all, expert opinion evidence may be required
to establish the contractual performance standard, such as
when an owner acts as its own general contractor employing
trades directly, or when a general contractor asserts claims
against its subcontractors for deficient performance. As before, the general rule is that expert testimony is required, unless, of course, the breach of industry standard practices is
obvious to jurors using their own normal experience. Unlike
the forensic scheduling expert, however, this would be an
expert in the particular trade who would need to establish
that standard.
If the defect is susceptible to either a design or construction deficiency, as is commonly the case, then an owner
would not be able to rely on res ipsa to establish breach unless it has an expert opinion on sufficiency of the design;
thus, the only remaining inference would be breach of the
construction contract for prima facie case purposes. This
would be true for a design-bid-build or a fast-track project.
On the other hand, if a design-build contract is in issue, res
ipsa should be available to establish the breach element of
an owner’s claim. It also might satisfy the damage causation
element, although a contractor may claim that an expert
opinion is needed by the owner to satisfy the foreseeability
requirement for recovery of a particular category of damages at the time of breach.
In situations where only one party is performing the construction activity and is doing so on a time-and-material basis, expert testimony should be required to establish a prima
facie case, if the result is not subject to a contractual warranty103 or otherwise readily comprehensible to the jury. If
the activity does not achieve the desired result within any
particular time, an expert should be necessary to prove that
the activity performed varied from standard practice and
caused the damages being claimed. If the result was either
late or incomplete at the conclusion of the performance, an
expert also should be necessary to establish what a reasonable time would have been for the performance, absent, of
course, a time-of-the-essence clause in the contract. Similarly, if the claim involves an assertion that the contractor was
inefficient in its performance, thereby unnecessarily increasing the time or cost of the project, the nature of the services
should require expert testimony on variance from standard
practice and damage causation.
If an expert would be helpful,
but not essential, then use of a
forensic expert is permissive and
not essential for a prima facie case.
Protecting Client Rights
Construction cases present complex fact patterns in which
issues of causation and damage often require the use of
expert testimony. The extension of res ipsa to construction
claims can be a valuable aid in both assertion and defense
of construction claims by owners and contractors alike.
Failure to take this established evidentiary principle into
consideration in deciding whether expert opinion evidence
is permissible or essential could jeopardize client rights and
adversely impact the cost of construction claim prosecution and defense as well. Counsel would therefore be well
advised to thoroughly assess not only the need for expert
opinion evidence but to assess the potential use of res ipsa
loquitor as well.
Endnotes
1. As used throughout this article, the terms “expert opinion
evidence,” “expert testimony,” and “opinion evidence” should be
deemed synonymous.
2. 29 Am. Jur. 2d Evidence § 182 (2008): “a party cannot satisfy its burden of production with evidence that supports only an
abstract or theoretical probability, or evidence that would require
the jury to engage in speculation or conjecture” (citing Guenther v.
Armstrong Rubber Co., 406 F.2d 1315 (3d Cir 1969); S. Burlington
Sch. Dist. v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 Vt.
33, 40, 410 A.2d 1359, 1362 (1980) (“Evidence which gives rise to
a determination based on ‘mere conjecture, surmise or suspicion,
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is an insufficient foundation for a verdict.’ (authority cited).”);
see also Holsen v. Heritage Mut. Ins. Co., 182 Wis. 2d 457, 465,
513 N.W.2d 690 (Ct. App.), rev. granted, decision vacated on other
grounds, 185 Wis. 2d 1, 517 N.W.2d 448 (1994) (internal citations
omitted): “[A] jury unguided by expertise beyond the ken of their
mutual life experiences would have no basis, other than speculation, to decide the complex issues of causation here; there would
be nothing upon which the jury could ‘base a reasoned choice between the two possible inferences.’ Jury awards may not be based
on speculation.”
3. See S. Burlington Sch. Dist., 138 Vt. 33 (dealing with the
need for expert testimony to establish the standard of care of a
roof designer and another’s breach of the obligation to adequately
supervise construction).
4. Id. at 45.
5. Treatment of the exclusion of expert testimony on pure relevancy grounds is beyond the scope of this article.
6. Burandt v. Clarke, 274 Or. 521, 547 P.2d 89 (1976) (“As defendants concede, medical testimony of causation between collision and injury is not essential if there is an ‘uncomplicated situation.’ ”).
7. See Merrill v. Univ. of Vt., 133 Vt. 101, 329 A.2d 635 (1974)
(quoting from Burton v. Holden & Martin, 112 Vt. 17, 19, 20 A.2d
99 (1941), as follows: “where, as here, the physical processes terminating in death are obscure and abstruse, and concerning which a
layman can have no well founded knowledge and can do no more
than indulge in mere speculation, there is no proper foundation for
a finding by the trier without expert medical testimony”) (emphasis added).
8. Keel v. St. Elizabeth Med. Ctr., 842 S.W.2d 860, 862 (Ky.
1992).
9. S. Burlington Sch. Dist. v. Calcagni-Frazier-Zajchowski
Architects, Inc., 138 Vt. 33, 43, 410 A.2d 1359 (1980): “A jury
is competent to draw logical inferences from facts within their
knowledge.”
10. See Mainor v. K-Mart Corp., 79 N.C. App. 414, 339 S.E.2d
476 (1986) (holding an expert is needed to testify “that the plaintiff, with reasonable certainty, may be expected to experience future pain and suffering as a result of a proven injury”); Wunderlich
Contracting Co. v. United States, 351 F.2d 956, 968 (Ct. Cl. 1965)
(“It was plaintiffs’ obligation in the case at bar to prove with reasonable certainty the extent of unreasonable delay which resulted from
defendant’s actions and to provide a basis for making a reasonably
correct approximation of the damages which arose therefrom.”).
11. IHC Hosps. v. Bd. of Comm’rs, 108 Idaho 136, 142–43,
697 P.2d 1150 (1985) (emphasis added); see also First Nat’l Bank v.
Sousanes, 96 Ill. App. 3d 1047, 1054, 422 N.E.2d 188 (1981) (“related to a science, profession, business or occupation”); Mindombe
v. United States, 795 A.2d 39, 42 n.6 (D.C. 2002); Nesmith v. Walsh
Trucking Co., 247 N.J. Super. 360, 369, 589 A.2d 613 (App. Div.
1989) (citations omitted), rev’d on other grounds, 123 N.J. 547, 548,
589 A.2d 596 (1991).
12. IHC Hosps., 108 Idaho at 143 (quoting with approval
George M. Bell, Handbook of Evidence for the Idaho Lawyer
63–64 (2d ed. 1972)).
13. Valiga v. Nat’l Food Co., 58 Wis. 2d 232, 251, 206 N.W.2d
377 (1973); Anderson v. Eggert, 234 Wis. 348, 361, 291 N.W. 365
(1940) (“Whether the testimony was properly received in this
case depends upon whether the members of the jury having that
knowledge and general experience common to every member of
the community would be aided in a consideration of the issues by
the testimony offered and received.”). See also State v. Blair, 164
Wis. 2d 64, 75, 473 N.W.2d 566 (Ct. App. 1991) (expert testimony is
admissible only “when the issue to be decided requires an analysis
that would be difficult for the ordinary person in the community”).
14. Kreklow v. Miller, 37 Wis. 2d 12, 22, 154 N.W.2d 243, 248
(1967), citing Henry Wade Rogers, Law of Expert Testimony
§ 36, at 51 (3d ed. 1941)); see also K-Mart Corp. v. Honeycutt,
24 S.W.3d 357, 360 (Tex. 2000); Nesmith v. Walsh Trucking Co.,
247 N.J. Super. 360, 369, 589 A.2d 613 (App. Div. 1989); Nolop v.
Skemp, 7 Wis. 2d 462, 96 N.W.2d 826 (1959); Kujawski v. Arbor
View Health Care Ctr., 139 Wis. 2d 455, 407 N.W.2d 249 (1987);
Bruss v. Milwaukee Sporting Goods Co., 34 Wis. 2d 688, 150
N.W.2d 337 (1967).
15. Bridger v. Union Ry. Co., 355 F.2d 382, 389 (6th Cir. 1966).
16. Jahanshahi v. Centura Dev. Co., 2003 Pa. Super 43, 816
A.2d 1179, 1184 (Pa. Super. 2003) (“[L]ost profits from a new
business may be established with reasonable certainty with the aid
of expert testimony . . .” quoting Restatement (Second) of Contracts § 352, Comment b). Thus, while expert testimony might
well aid the fact finder, it is not required.”); Bonura v. Sea Land
Serv., Inc., 505 F.2d 665, 669 (5th Cir. 1974) (in holding expert testimony is not a prerequisite, the court stated: “Believing as we do
in the ability of the modern American jury, we align ourselves with
the majority of the circuits which have spoken on this question.
We hasten to note, however, that we believe that it is decidedly the
better practice to present the jury with either expert mathematical
testimony or actuarial tables to aid it in its task of reducing gross
future lost earnings to their present value.”).
17. City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005)
(“Even uncontroverted expert testimony does not bind jurors unless the subject matter is one for experts alone.”).
18. Such a requirement has been characterized as representing “an extraordinary step.” Weiss v. United Fire & Cas., 197 Wis.
2d 365, 378, 451 N.W.2d 753 (1995); Trinity Lutheran Church
v. Dorschner Excavating, Inc., 289 Wis. 2d 252, 710 N.W.2d 680
(2006).
19. Webb v. Lungstrum, 223 Kan. 487, ¶¶ 1–2, 575 P.2d 22
(1978); Micro-Managers v. Gregory, 147 Wis. 2d 500, 513, 434
N.W.2d 97 (Ct. App. 1988) (quoting from La Rossa v. Scientific
Design Co., 402 F.2d 937, 943 (3d Cir. 1968) as follows: “If the
activity of [the defendant] pursuant to its contract . . . be viewed
as the rendering of professional services, then no matter how the
basis of liability is described, it amounts to no more than a claim
of negligence in failing to perform these services with due care.”).
20. City of Mounds View v. Walijarvi, 263 N.W.2d 420, 424
(Minn. 1978).
21. Lemay v. Burnett, 139 N.H. 633, 634, 660 A.2d 1116 (1995)
(this court has held that where “scientific issues would be beyond
the capacity of men of common experience and knowledge to
form a valid judgment by themselves . . . expert evidence [is] required to assist a jury in its decision (authorities cited)”) (“Expert
testimony is required, however, where the subject presented is so
distinctly related to some science, profession or occupation as to
be beyond the ken of the average layperson.” (quoting from Beard
v. Goodyear Tire & Rubber Co., 587 A.2d 195, 200 (D.C. 1991)))
(emphasis added); IHC Hosps. v. Bd. of Comm’rs, 108 Idaho 136,
697 P.2d 1150 (1985).
22. Alco Std. Corp. v. Westinghouse Elec. Corp., 206 Ga. App.
794, 796, 426 S.E.2d 648 (1992) (“a duty is implied in every service,
repair or construction contract to perform it skillfully, carefully,
diligently, and in a workmanlike manner.”); Peterson v. Highland
Crate Co-op., 156 Fla. 539, 541, 23 So. 2d 716 (1945) (“There is an
implied obligation on everyone who undertakes to perform a contract that it will be performed in a good, workmanlike manner.”);
Roscoe Moss Co. v. Jenkins, 55 Cal. App. 2d 369, 376, 130 P.2d 477
(Ct. App. 1942) (“The provision of the agreement that the work
would be done in a good and workmanlike manner added nothing
to plaintiff’s obligations under the contract.”); Dawn Court Assocs. v. Cristia, 115 Ohio Misc. 2d 54, 59, 761 N.E.2d 705 (2001)
(“In every contract for the future performance of construction services, an implied duty is imposed upon an independent contractor
to perform services in a workmanlike manner.”); Holden v. Placid
Oil Co., 512 F. Supp. 644, 648 (E.D. La. 1981); Waterman S.S.
Corp. v. Brady-Hamilton Stevedore Co., 243 F. Supp. 298 (D. Or.
1965); Board of Educ. v. Del Bianco & Assocs., Inc., 57 Ill. App.
3d 302, 308, 372 N.E.2d 953 (Ct. App. 1978); Gosselin v. Better
Homes, Inc., 256 A.2d 629, 639 (Me. 1969); Maville v. Donaghue,
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 7
193 Misc. 11, 82 N.Y.S.2d 621 (1948); McCelland-Gentry Motor
Co. v. Meyer, 94 Okla. 282, 285, 222 P. 261 (1923); Flintkote Co.
v. Dravo Corp., 678 F.2d 942, 948 (11th Cir. 1982); Maloney Tank
Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146, 149
(10th Cir. 1931); Kubby v. Crescent Steel, 105 Ariz. 459, 460, 466
P.2d 753, 754 (1970).
23. Riverfront Lofts Condo. Owners Ass’n v. Milwaukee/
Riverfront Props. L.P., 236 F. Supp. 2d 918, 936 (E.D. Wis. 2002)
(“Generally, expert testimony is needed to determine whether
a manner of construction meets with industry standards and is,
thus, workmanlike. See Herkert v. Stauber, 106 Wis. 2d 545, 570
(1982). However, when an issue can be resolved by common sense,
no such testimony is needed. Id.”); Dawn Court Assocs. v. Cristia,
115 Ohio Misc. 2d 43, 60, 62, 761 N.E.2d 705 (2201) (“An expert
witness is needed to establish that building repairs were not done in
a workmanlike manner. Evid. R. 702. An expert witness is needed
because people who are not trained or experienced in construction
cannot know whether repairs to a building were done in a workmanlike manner. The expert must testify that it is more probable
than not that the building repairs that are the subject of the lawsuit were not done in a workmanlike manner, and that this failure
caused the damages sustained by the plaintiff.”) (“ This court holds
that it is necessary to establish by expert opinion testimony that a
contractor failed to perform in a workmanlike manner.”).
24. City of Cedarburg Light & Water Comm’n v. Allis-Chalmers Mfg. Co., 33 Wis. 2d 560, 568, 148 N.W.2d 13 (1967) (“We have
applied a related concept in holding that expert testimony is essential to establish an injured person’s future medical expenses as well
as his future pain and suffering.).
25. See Restatement of Contracts § 330 (1932); Arctic Contractors, Inc. v. State, 564 P.2d 30, 45 (Alaska 1977); Richmond v.
Cretens, 175 Wis. 297, 185 N.W. 247 (1921).
26. Fed. R. Evid. 702 (2009).
27. See Wis. Stat. § 907.02 (2008–09).
28. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–93
(1993). See also Kuhmo Tire Co. v. Carmichael, 526 U.S. 137 (1999)
(applying Daubert to testimony of experts who are not scientists
and finding that the trial court’s “gatekeeping” obligation applies to
testimony based on “technical” or “other specialized” knowledge.).
29. Fed. R. Evid. 402 (2009).
30. Fed. R. Evid. 703 (2009).
31. These include: 1. whether the theory or technique has been
tested; 2. whether the theory or technique has been subjected to
peer review and publication; 3. the “known or potential rate of
error” for the theory or technique; 4. whether the theory or technique has been generally accepted in the particular field or relevant
expert community; and 5. whether the probative value of the proposed testimony is substantially outweighed by the dangers of unfair prejudice. Daubert, 509 U.S. at 593–95; Kuhmo Tire, 526 U.S.
at 150.
32. 2000 Amendments to Rule 702, advisory comm. notes.
33. Kumho Tire, 526 U.S. at 150–51 (“list of factors was meant
to be helpful, not definitive”).
34. See generally Bruce Gerhardt, The Design Professional’s
Standard of Care After Kumho Tire: From the “Expert With an
Opinion” to “Expert Opinion,” 28 Constr. Law., Fall 2008, for
a more detailed discussion of the history and status of the U.S.
Supreme Court cases concerning the admissibility of expert
testimony.
35 . Id. at 138, 142, 147.
36. Id. at 151 (“it will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume
tester able to distinguish among 140 odors at a sniff, whether his
preparation is of a kind that others in the field would recognize as
acceptable.”).
37. Beecher v. LIRC, 273 Wis. 2d 136, 682 N.W.2d 29 (2004),
citing Walter Kassuba, Inc. v. Bauch, 38 Wis. 2d 648, 158 N.W.2d
387 (1968)) (emphasis added). No cases have been encountered
dealing with whether foreseeability is determined solely at the time
of initial contract execution versus later on when modifications are
entered.
38. Id.; 29 Am. Jur. 2d Evidence § 182 (“. . . a party cannot satisfy its burden of production with evidence that supports only an
abstract or theoretical probability, or evidence that would require
the jury to engage in speculation or conjecture” (citing Guenther v.
Armstrong Rubber Co., 406 F.2d 1315 (3d Cir 1969))).
39. Acuity Mut. Ins. Co. v. Olivas, 2007 WI 12, ¶ 47, 298 Wis.
2d 640, 726 N.W.2d 258; see also Van Sickle v. Hallmark & Assocs.,
2008 ND 12, 744 N.W.2d 532, 536 (2008) (“Breach of contract occurs when there is nonperformance of a contractual duty when it
is due. . . . The party claiming there is a breach has the burden of
proof.”) (authorities omitted).
40. Pittman v. Lieffring, 59 Wis. 2d 52, 59, 207 N.W.2d 610, 613
(1973).
41. Jacobs v. Tenneco W., 186 Cal. App. 3d 1413, 231 Cal. Rptr.
351 (1986) (“an excuse for nonperformance is an affirmative defense.”) (authority omitted); Lenn v. Riche, 331 Mass. 104, 111,
117 N.E.2d 129 (1953).
42. Stender v. Twin City Foods, 5 Wash. App. 809, 810, 490 P.2d
1311 (1971).
43. This is to be distinguished from concurrent causation in a
tort context where the plaintiff need only show that the defendant’s
conduct was a substantial factor in causing the damage, and the
defendant is then required to prove contributory negligence as a
defense or bar. See Chief Judge Cardozo’s discussion as applied
to nuisance claims in McFarlane v. City of Niagara Falls, 247 N.Y.
340, 160 N.E. 391 (1928); Yow v. Henken, 152 Wis. 2d 86, 447
N.W.2d 538 (Ct. App. 1989) (“The cause questions ask whether
there was a causal connection between the negligence of any person and the (accident) (injury). These questions do not ask about
‘the cause,’ but rather ‘a cause.’ The reason for this is that there may
be more than one cause of an (accident) (injury).”—quoting from
Wis. J.I.—Civil 1500).
44. Amelco Elec. v. City of Thousand Oaks, 27 Cal. 4th 228,
115 Cal. Rptr. 2d 900, 38 P.3d 1120 (Ct. App. 2002).
45. Lichter v. Mellon-Stuart Co., 305 F.2d 216, 219, 220 (3d Cir.
1962) (“Since the court could find no basis for allocation of this
lump sum between those causes which were actionable and those
which were not, it was proper to reject the entire claim. Kremer v.
United States, 1950, 88 F. Supp. 740, 116 Ct. Cl. 358, J. J. Kelly Co.
v. United States 1947, 69 F. Supp. 117, 107 Ct. Cl. 594.”).
46. City of Westminster v. Centric-Jones Constructors, 100 P.3d
472 (Colo. 2003).
47. Amelco, 27 Cal. 4th at 246 (authority omitted).
48. Monsen Eng’g Co. v. Tami-Githens, Inc., 219 N.J. Super.
241, 530 A.2d 313 (1987) (where contractee established that there
was a valid liquidated damage clause, contractor had the burden
of proving contractually acceptable excuses for delay because “a
challenge to a liquidated damage clause is basically an affirmative
defense”) citing in support: Wassenaar v. Panos, 111 Wis. 2d 518,
331 N.W.2d 357 (1983); Hous. Auth. v. Forcum-Lannom, Inc.,
248 Ark. 750, 454 S.W.2d 101, 102–06 (1970); L.A. Reynolds Co.
v. State Highway Comm’n, 271 N.C. 40, 155 S.E.2d 473, 482–83
(1967); Cent. Steel Drum Co. v. Gold Cooperage Inc., 200 N.J.
Super. 251, 265, 491 A.2d 49 (App. Div. 1985)). The defense for
the contractor is to show the claimant substantially contributed
to delay and thus forfeited the right to recover such damages. See
Gen. Ins. Co. of Am. v. Commerce Hyatt House, 5 Cal. App. 3d
460, 472, 85 Cal. Rptr. 317 (1970) (because liquidated damages are
not favored in equity, “[a]n owner whose acts have contributed substantially to the delayed performance of a construction contract
may not recover liquidated damages on the basis of such delay.”).
49. Fed. R. Civ. P. 8(a)(2).
50. Douglas E. Motzenbecker, Supreme Court Raises the Pleadings Bar Again, 35:2 Litig. News., Winter 2010 (discussing Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
51. Id. at 11 (discussing Ashcroft v. Iqbal, 129 S. Ct. 1937
(2009)).
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 8
52. Fed. R. Civ. P. 11(b)(2), (3).
53. Zukowsky v. Brown, 79 Wash. 2d 586, 592, 488 P.2d 269
(1971) (“We are concerned with a phrase born to the law of torts
in 1863. Byrne v. Boadle, 159 Eng. Rep. 299, 2 H. & C. 722 (1863).
Literally translated, the words mean ‘the thing itself speaks,’ and
as first used by courts they meant nothing more than that the particular manner and circumstances of an accident might ‘speak’
sufficiently to support an inference of negligence by the trier of
fact, enabling the injured plaintiff to avoid nonsuit on that issue.
Thus, the phrase initially expressed a common-sense recognition
of the potential efficacy of circumstantial evidence. Unfortunately,
in the generations since the concept was first enshrined in Latin,
the phrase has developed an almost impenetrable crust.”) (further
quoting from William L. Prosser, Res Ipsa Loquitur in California,
37 Cal. L. Rev. 183 (1949), as follows: “From that casual utterance, dignified and magnified by the cloak of the learned tongue,
there has grown by a most extraordinary process the ‘doctrine’ of
res ipsa loquitur. It is a thing of fearful and wonderful complexity
and ramifications, and the problems of its application and effect
have filled the courts of all our states with a multitude of decisions,
baffling and perplexing alike to students, attorneys and judges.”);
see also Shull v. B.F. Goodrich Co., 477 N.E.2d 924 (Ind. App.
1985); Tamura, Inc. v. Sanyo Elec., Inc., 636 F. Supp. 1065, 1068
(N.D. Ill. 1986) (“it is similar to the indirect method of proof in
employment discrimination cases, where a plaintiff may prove unlawful discrimination by eliminating other reasonable explanations
for his or her employer’s acts”). See generally Chesapeake & Potomac Tel. Co. v. Hicks, 25 Md. App. 503, 514, 337 A.2d 744 (Ct.
Spec. App. 1975) (referencing 4 John Henry Wigmore, A Treatise on Evidence § 2509, at 3556–57 (1st ed. 1905)).
54. Gray v. BellSouth Telecomm., Inc., 11 So. 3d 1269, (Miss.
Ct. App. 2009); Soltz v. Colony Recreation Ctr., 151 Ohio St. 503,
87 N.E.2d 167 (1949); Roberts v. Weber & Sons, Co., 248 Neb. 243,
247, 533 N.W.2d 664 (1995); Marrero v. Goldsmith, 486 So. 2d 530,
531 (Fla. 1986)
55. Cleary v. Manning, 884 N.E.2d 335, 338 (Ind. Ct. App.
2008); Horner v. N. Pac. Beneficial Ass’n Hosps., Inc., 62 Wash.
2d 351, 382 P.2d 518 (1963); Tucker v. Univ. Specialty Hosp., 166
Md. App. 50, 62, 887 A.2d 74 (Ct. Spec. App. 2005) (characterizing
the use of expert testimony to establish the predicates as “quasi-res
ipsa loquitur” in that the expert testifies to the probability the injury
was caused by the failure to exercise due care, citing Dover Elevator Co. v. Swann, 334 Md. 231, 254, 638 A.2d 762 (1994)).
56. Shields v. United Gas Pipe Line Co., 110 So. 2d 881, 884
(La. Ct. App. 1959) (“[T]here is no inference as to what act produced the injury, and no foundation is laid for the application of
the doctrine where the physical act or the thing which caused the
injury is unknown or is not disclosed or identified. 65 C.J.S. Negligence § 220(8), sub-section (b).”).
57. Id. at 884 (“the thing which speaks is the unusual factor
within the causal chain”); Cleary, 884 N.E.2d at 335; Swierczek v.
Lynch, 237 Neb. 469, 466 N.W.2d 512 (1991); Mireles v. Broderick, 113 N.M. 459, 827 P.2d 847 (Ct. App. 1992); see Restatement
(Second) of Torts § 328D, cmt. b (1965). (“A res ipsa loquitur case
is ordinarily merely one kind of case of circumstantial evidence, in
which the jury may reasonably infer both negligence and causation
from the mere occurrence of the event and the defendant’s relation
to it.”).
58. Massengill v. Starling, 87 N.C. App. 233, 237, 360 S.E.2d
512 (1987); Knief v. Sargent, 40 Wis. 2d 4, 7, 161 N.W.2d 232
(1968) (“When there is evidence of negligence substantial enough
to sustain a verdict, the doctrine is inapplicable to those particular
facts or theory of negligence and the giving of the instruction is
considered superfluous or redundant.”).
59. Danville Cmty. Hosp., Inc. v. Thompson, 186 Va. 746, 759,
43 S.E.2d 882 (1947).
60. Loomis. v. Toledo Rys. & L. Co., 107 Ohio St. 161, 140
N.E. 639 (1923); Kekelis v. Whitin Machine Works, 273 N.C. 439,
160 S.E.2d 320 (1968) (the res ipsa inference of causation does not
apply where there is more than one inference that can be drawn
from the evidence); Shields, 110 So. 2d at 885. However, the contrary also has been held: namely, a claimant is not required to present evidence to overthrow “every reasonable theory of nonliability
on the part of the defendant.” Powers v. Seibert, 297 S.W.2d 627,
630 (Mo. Ct. App. 1956) (quoting earlier decision) (the facts of the
occurrence warrant the inference but do not compel it).
61. Sharp v. Wyse, 317 N.C. 694, 698, 346 S.E.2d 485 (1986)
(“The rule of res ipsa loquitur never applies when the facts of the
occurrence, although indicating negligence on the part of some
person, do not point to the defendant as the only probable tortfeasor. In such a case, unless additional evidence, which eliminates
negligence on the part of all others who have had control of the
instrument causing the plaintiff’s injury, is introduced, the court
must nonsuit the case.”) (quoting from Kekelis, 273 N.C. at 443).
62. George Foltis, Inc. v. New York, 287 N.Y. 108, 115, 38
N.E.2d 455 (1941) (“. . . [T]he doctrine of res ipsa loquitur is not an
arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence. It requires evidence which
shows at least probability that a particular accident could not
have occurred without legal wrong by the defendant.”); Bornstein
v. Metro. Bottling Co., 26 N.J. 263, 269, 139 A.2d 404 (1958); see
William L. Prosser, Handbook of the Law of Torts § 39 at 218–
19 (4th ed. 1971) (“The injury must either be traced to a specific
instrumentality or cause for which the defendant was responsible,
or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed. . . . Where
such other causes are in the first instance equally probable, there
must be evidence which will permit the jury to eliminate them.”).
63. Turk v. H. C. Prange Co., 18 Wis. 2d 547, 553, 119 N.W.2d
362 (1962).
64. Koch v. Norris Pub. Power Dist., 10 Neb. App. 453, 459, 632
N.W.2d 391 (2001); Morner v. Union Pac. R.R. Co., 31 Wash. 2d
282, 290, 196 P.2d 744 (1948).
65. Shields v. United Gas Pipe Line Co., 110 So. 2d 882, 884
(La. Ct. App. 1959); Myrlak v. Port Auth., 157 N.J. 84, 95, 723
A.2d 45 (1999); Leikach v. Royal Crown, 261 Md. 541, 547–48, 276
A.2d 81 (1971); Norris v. Ross Stores, Inc., 159 Md. App. 323, 859
A.2d 266 (Ct. Spec. App. 2004).
66.. Mueller v. St. Louis Pub. Serv. Co., 358 Mo. 247, 251, 214
S.W.2d 1 (1948); Weaks v. Rupp, 966 S.W.2d 387, 395 (Mo. Ct.
App. 1998) ( Missouri courts often infer the “superior knowledge”
element of res ipsa loquitur from the defendant’s control over the
instrumentality at issue); Shields, 110 So. 2d at 885 (“In addition,
for the doctrine to be applicable, the case presented must be one in
which the plaintiff cannot be expected to have information as to
the cause of the accident, and the defendant on the contrary must
from the circumstances be presumed to be fully informed on the
subject.” (authority cited)); Collins v. Superior Air-Ground Ambulance Serv., Inc., 338 Ill. App. 3d 812, 789 N.E.2d 394 (2003) (“[The]
. . . essence . . . [of] the doctrine of res ipsa loquitur, and its purpose
is to allow proof of negligence by circumstantial evidence when the
direct evidence concerning cause of injury is primarily within the
knowledge and control of the defendant.”); Baker v. Coca Cola
Bottling Works, 132 Ind. App 390, 177 N.E.2d 759 (Ct. App. 1961)
(“The basis or reasoning for this principle, in its origin at least,
seemed to have been that the defendant had exclusive control over
the injuring agency and the plaintiff normally had no access to any
information about its control and operation. 3 Cooley on Torts
(4th ed.), sec. 480, p. 369.”); Dalley v. Utah Valley Reg’l Med. Ctr.,
791 P.2d 193, 197 (Utah 1990); Nopson v. City of Seattle, 33 Wash.
2d 772, 207 P.2d 674 (1949).
67. See Jackson v. H. H. Robertson Co., 118 Ariz. 29, 574 P.2d
822 (1978).
68. Gilbert v. Korvette’s, Inc., 223 Pa. Super. 359, 362-63, 299
A.2d 356 (1972).
69. Curley v. Ruppert, 272 A.D. 441, 444, 71 N.Y.S.2d 578 (N.Y.
App. Div. 1947) (“The rule of res ipsa loquitur is a common-sense
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 9
appraisal of the probative value of circumstantial evidence.”);
Byrne v. Boadle, 2 Hurl. & Colt. 722 (dissent) (quoted in Chesapeake & Potomac Tel. Co. v. Hicks, 25 Md. App. 503, 509, 337
A.2d 744 (Ct. Spec. App. 1975)) (Res ipsa “adds nothing to the
law, has no meaning which is not more clearly expressed for us
in English, and brings confusion to our legal discussions. It does
not represent a doctrine, is not a legal maxim, and is not a rule.
It is merely a common argumentative expression of ancient Latin
brought into the language of the law by men who were accustomed
to its use in Latin writings. * * * It may just as appropriately be
used in argument on any subject, legal or otherwise. Nowhere does
it mean more than the colloquial English expression that the facts
speak for themselves, that facts proved naturally afford ground for
an inference of some fact inquired about, and so amount to some
proof of it. The inference may be one of certainty, as when an excessive interest charge appeared on the face of an instrument, or
one of more or less probability only, as when negligence in the care
of a barrel of flour was found inferable from its fall out of a warehouse.”); State v. Jasper, 237 Neb. 754, 763, 467 N.W.2d 855, 862
(1991), quoted with approval in Anderson v. Service Merch. Co.,
240 Neb. 873, 880, 485 N.W.2d 170 (1992)) (“Res ipsa loquitur operates as a type of circumstantial evidence, that is, ‘facts or circumstances, proved or known, from which existence or nonexistence of
another fact may be logically inferred or deduced through a rational process.’”); Ferguson v. Metro. Gov’t of Nashville & Davidson
County, No. 01-A-01-9211-CV-00434, 1993 Tenn. App. LEXIS
281 (Tenn. Ct. App., Apr. 16, 1993).
70. But see Shields, 110 So. 2d at 884 (without citation, res ipsa
is “a rule of evidence peculiar to the law of negligence”); Zichler v.
St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654 (1933); Flick
v. Crouch, 1976 Okla. 116, 555 P.2d 1274; Horner v. N. Pac. Beneficial Ass’n Hosps., Inc., 62 Wash. 2d 351, 359 (“a rule of evidence
peculiar to the law of negligence” also without citation).
71. George Foltis, Inc. v. New York, 287 N.Y. 108, 115, 38 N.E.2d
455 (1941) (in discussing res ipsa, the court stated: “In the administration of the law we must be satisfied with proof which leads to a
conclusion with probable certainty where absolute logical certainty
is impossible. We may be constrained to act upon indecisive evidence
where complete proof is impossible. Then the logical probative force
of the evidence produced is measured, in part, by the test of whether
it is the best evidence available.” (authority cited)).
72. Zichler, 332 Mo. at 911–12; Chism v. Campbell, 250 Neb.
921, 927, 553 N.W.2d 741 (1996).
73. Owen v. Gen. Motors, 533 F.3d 913, 923 (8th Cir. 2008) (“It
is well-established under Missouri law that juries may infer causation and the existence of product defects based on circumstantial
evidence under a res ipsa-type theory such that some product liability claims may be submitted to juries without expert testimony that
identifies specific product defects” citing Fain v. GTE Sylvania,
Inc., 652 S.W.2d 163, 165 (Mo. Ct. App. 1983)).
74. United States v. Mandujano, 499 F.2d 370, 373 n.5 (5th Cir.
1974) cited with approval in State v. Reid, 383 S.C. 285, 679 S.E.2d
194 (Ct. App. 2009) (“The res ipsa loquitur or unequivocality test—
an attempt is committed when the actor’s conduct manifests an
intent to commit a crime” referencing a comment to the Model
Penal Code); see also Collier v. State, 846 N.E.2d 340, 347 (Ind.
App. 2006) (“[a]n attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done” and, in
support, quoting from Hamiel v. Wisconsin, 92 Wis. 2d 656, 285
N.W.2d 639, 644 (1979) (“[I]n the crime of attempt, it is primarily the acts of the accused which provide evidence of the requisite
mental intent.”).
75. Chester D. Hooper & Jeanne-Marie D. Van Hemmen, Burdens of Proof Between Tugs and Tows, 70 Tul. L. Rev. 531, 538–41
(1995); but see Mullane v. Chambers, 206 F. Supp. 2d 105, 116 (D.
Mass. 2002), rev’d and remanded on other grounds, 333 F.3d 322 (1st
Cir. 2003) (“The circumstances of this case in admiralty are not
within the scope of precedents on res ipsa loquitur, and no reason
appears for a court’s extending the “principle” to circumstances to
which case law would not apply it.”).
76. Acuity Mut. Ins. Co. v. Olivas, 2007 Wis. 12, ¶ 47, 298 Wis.
2d 640, 726 N.W.2d 258 (2007).
77. David Tartaglio, Note, Expectation of Peace of Mind: A
Basis for Recovery of Damages for Mental Suffering Resulting from
the Breach of First Party Insurance Contracts, 56 S. Cal. L. Rev.
1345, 1369 (1983) (“Professors Appleman and Appleman suggest
that in order to shift to insurers the burden of proving that an insurer acted reasonably, any insurer breach should be considered a
‘contractual res ipsa.’ ”).
78. Michael L. Closen, HIV-AIDS Infected Surgeons and Dentists, and the Medical Profession’s Betrayal of Its Responsibility to
Patients, 41 N.Y.L. Sch. L. Rev. 57, 124 (1996).
79. Joseph Pickard’s Sons Co. v. United States, 532 F.2d 739,
742 (Ct. Cl. 1976).
80. In re Iridium Operating LLC, 373 B.R. 283, 300 (S.D.N.Y.
2007) (“This aspect of the [Creditors’] Committee’s case amounts
to res ipsa loquitur-type thinking: i.e., how could the projections
have been close to reasonable when the service turned out to be
so inadequate, the debt burden turned out to be so high and the
revenue turned out to be so pathetically low?”).
81. Barwick v. U.S., 923 F.2d 885, 887 (D.C. Cir. 1991) (personal
injury negligence case); In re Sealed Case, 494 F.3d 139, 152 (D.C.
Cir. 2006) (in reversing the dismissal of a complaint implicating state
secrets, the court implicitly accepted the use of res ipsa in stating,
“Horn’s prima facie case against Huddle relies, subject to the constraints of the state secrets privilege, upon the cable, the office chatter
of Embassy personnel, and a res ipsa loquitur inference as to Huddle’s
source of information about Horn’s conversation with Sikorra.”).
82. 42 U.S.C. § 1983; Abdullahi v. City of Madison, 423 F.3d
763, 770 (7th Cir. 2005) (“Even conceding that the plaintiff may have
been in police custody while he suffered his injury, we refused to indulge plaintiff’s ‘logic akin to the doctrine of res ipsa loquitur’ ” citing
Brownell v. Figel, 950 F.2d 1285, 1292 (7th Cir. 1991); Christopher v.
Florida, 449 F.3d 1360 (11th Cir. 2006) (use of a res ipsa theory in a §
1983 action claiming use of excessive force by an officer).
83. Karouni v. Gonzales, 399 F.3d 1163, 1174 (9th Cir. 2005).
84. Fowler v. Equitable Trust Co., 141 U.S. 384, 389 (1891)
(“Where, indeed, the contract upon its face imports usury, as by an
express reservation of more than legal interest, there is no room for
presumption; for the intent is apparent; res ipsa loquitur.”).
85. Hardscrabble Ski Area, Inc. v. First Nat’l Bank, 42 Wis. 2d
334, 166 N.W.2d 191 (1969) (“A contract may be breached through
negligence as well as any other manner.”); Shaw v. Petersen, 180
Ga. App. 823, 824, 350 S.E.2d 831 (1986).
86. Patton v. Mid-continent Sys., Inc., 841 F.2d 742, 751 (7th
Cir. 1988) (“Even if the breach is deliberate, it is not necessarily
blameworthy. The promisor may simply have discovered that his
performance is worth more to someone else. If so, efficiency is promoted by allowing him to break his promise, provided he makes
good the promisee’s actual losses. If he is forced to pay more than
that, an efficient breach may be deterred, and the law doesn’t want
to bring about such a result.”) (Judge Posner).
87. Landwehr v. Citizens Trust Co., 110 Wis. 2d 716, 329 N.W.2d
411 (1983) (“We agree with the court of appeals that there must be
a duty existing independently of the performance of the contract
for a cause of action in tort to exist.”); McDonald v. Century 21
Real Estate, 132 Wis. 2d 1, 390 N.W.2d 68 (Ct. App. 1986) (“there is
no tort liability for non-feasance i.e., for failing to do what one has
promised to do in the absence of a duty to act apart from the promise made”); (“torts consist of the breach of duties fixed and imposed upon the parties by the law itself, without regard to their consent to assume them”); Autumn Grove Jt. Venture v. Rachlin, 138
Wis. 2d 273, 405 N.W.2d 759 (Ct. App. 1987) (“Where a contract is
involved, in order for a claim in tort to exist, a duty must exist independently of the duty to perform under the terms of the contract.
Wisconsin does not recognize an inherent cause of action in tort for
every negligent performance of a contractual obligation.”).
Published in The Construction Lawyer, Volume 30, Number 4, Fall 2010 © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 10
88. The economic loss doctrine bars a claim for purely economic losses from being pursued in tort when the underlying obligation
arose from a contract. See Nelson v. Motor Tech, Inc., 158 Wis.
2d 647, 462 N.W.2d 903 (Ct. App. 1990) (“[I]n order to proceed
in a tort action when the parties’ relationship is defined by a contract, there must be a duty in common law independent from any
duty created by the contract. In applying this test, the existence of
a contract is ignored when determining whether the alleged misconduct is actionable in tort.”); Flintkote Co. v. Dravo Corp., 678
F.2d 942, 948 (11th Cir. 1982) (“The [economic loss] rule does not
prevent a tort action to recover for injury to other property and
persons because the duty breached generally arises independent of
the contract.”).
89. See Sunnyslope Grading v. Miller, Bradford, 148 Wis. 2d
910, 437 N.W.2d 213 (1989); Wisconsin’s economic loss doctrine
is a judicially created rule that aims to preserve the distinction between contract and tort and “seeks to avoid drowning contract law
in a ‘sea of tort.’ ” Linden v. Cascade Stone Co., 2005 WI 113, ¶ 7,
283 Wis. 2d 606, 699 N.W.2d 189 (2005).
90. The exception, of course, is in the case of bad faith by an
insurer.
91. 12 Samuel Williston, Treatise on the Law of Contracts,
§ 34:3 at 21 (Richard A. Lord ed., 4th ed. 1999) (“since all trades
have their usages, when a contract is made with someone concerning the business of his or her craft, it is framed on the basis of
its usage, which becomes a part of the contract, except the usage
is preempted by particular stipulations”); Polyfusion Electronics,
Inc. v. AirSep Corp., 30 A.D.3d 984, 985, 816 N.Y.S.2d 783 (App.
Div. 2006) (industry custom and practice cannot modify unambiguous contract terms).
92. 12 Williston, supra note 91, § 34:16 at 128 (“A party is always held to conduct generally observed by members of his or her
chosen trade because the other party is justified in so assuming
unless he or she indicates otherwise.”); Dwyer v. City of Brenham,
70 Tex. 30, 7 S.W. 598, 599 (Tex. 1888) (“the parties are always
presumed to contract in reference to the usage or custom which
prevails in the particular trade or business to which the contract
relates”) (quoted with approval in Modine Mfg. Co. v. N.E. Indep.
Sch. Dist, 503 S.W.2d 833 (Tex. Civ. App. 1973)); Redding v. Snyder, 352 Mich. 241, 246, 89 N.W.2d 471 (1958) quoting Karwick v.
Pickands, 171 Mich. 463, 471 (1912) (“It is said that all trades have
their usages, and, when a contract is made with a man about the
business of his craft, it is framed on the basis of its usage, which
becomes a part of it, except when its place is occupied by particular
stipulations”) and referencing California Lettuce Growers, Inc., v.
Union Sugar Co., 45 Cal. 2d 474, 289 P.2d 785 (1955); 55 Am. Jur.
Usages and Customs § 24; 25 C.J.S., Customs and Usages § 9 and
3 Corbin on Contracts, § 556; Mihara v. Dean Witter & Co., 619
F.2d 814, 820 (9th Cir. 1980) (admission of testimony regarding
New York Stock Exchange and NASD rules was proper because
the rules reflect the standard to which all brokers are held.); see also
U.C.C. § 1-205(2), (4), (5).
93. A claimant should not have to show it is free from fault if
the performance needed to produce the result rests solely with the
other party.
94. Waterbury v. Byron Jackson, Inc., 576 F.2d 1095, 1099 (5th
Cir. 1978) (res ipsa rejected where defendant’s agents controlled the
instruments of an oil well squeeze operation but the plaintiff had
complete control over its planning and preparation); see also Pure
Torpedo Corp. v. Nation, 327 Ill. App. 28, 63 N.E.2d 600 (1945);
J.C. Trahan Drilling Contractor, Inc. v. Cockrell, 225 So. 2d 599
(La. App. 1969) (contractor and owner had shared control of the
drilling operation, precluding res ipsa); A. & J., Inc. v. S. Cities
Distrib. Co., 173 La. 1051, 1053, 139 So. 477, 478 (1932) (“where
there is a divided responsibility and the damage may have resulted
from a cause over which the defendant had no control, all of the
authorities hold, or at least the great weight of authority is, that the
rule cannot be successfully invoked.”).
95. Tucker v. Univ. Specialty Hosp., 166 Md. App. 50, 61, 887
A.2d 74 (Ct. Spec. App. 2005) (in allowing the use of expert inferential reasoning to establish the predicate facts for res ipsa in
a medical malpractice action, the court stated “. . . a jury is not
permitted to apply a res ipsa analysis to infer negligence, unaided
by expert testimony, in a complex case. . . .”).
96. Gray v. BellSouth Telcom, Inc., 11 So. 3d 1269, 1272 (Miss.
2009); Fibber’s Paint & Body Shop v. Reed, 252 Ark. 1016, 482
S.W.2d 832 (1972); St. John’s Hosp. & Sch. of Nursing, Inc. v.
Chapman, 1967 Okla. 126, 434 P.2d 160 (1967); Napoli v. Hinsdale
Hosp., 213 Ill. App. 3d 382, 572 N.E.2d 995 (1991) (the claimant
has the burden to prove all three elements); but see Gatlin v. Ruder,
137 Ill. 2d 284, 295–96, 560 N.E.2d 586 (1990) (reaffirming Illinois’
elimination of the third element and holding a claimant does not
have to eliminate all other possible causes to use res ipsa).
97. Town of Alma v. Azco Constr. Inc., 10 P.3d 1256 (Colo.
2000). (“Consistent with this duty analysis, we now expressly
adopt the economic loss rule. We hold that a party suffering only
economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an
independent duty of care under tort law.”).
98. See, e.g., Robert M. D’Onofrio, Can There Be Float on the
Critical Path? Under Constr. Aug. 2009; Judah Lifschitz, Evans
Barba & Alexis Lockshin, A Critical Review of the AACEI Recommended Practice for Forensic Schedule Analysis, Constr. Law., Fall
2009, at 15.
99. Time of the essence generally arises when the contract or
conduct of the parties makes it clear that time is a critical element
of the performance and consequences are specified for failure to
achieve on time performance. Ricchio v. Oberst, 76 Wis. 2d 545,
557, 251 N.W.2d 781 (1977) (“Time will not be regarded as of the
essence of the contract merely because a definite time for performance is stated therein, without any further provision as to the effect of nonperformance at the time stated.”); see also Long Inv.
Co. v. O’Donnell, 3 Wis. 2d 291, 296–97, 88 N.W.2d 674 (1958)
(a provision requiring performance by a date “no later than” does
not transform time into being of the essence without language on
consequences for untimely performance). There is authority for
the proposition that where there is some provision as to time of
performance, a reasonable time is not implied; however, the existence of one or the other is beyond the scope of this article.
100. Tommy L. Griffin Plumbing & Heating Co. v. Jordan,
Jones & Goulding, Inc., 570 S.E.2d 197, 199 (S.C. Ct. App. 2002)
(expert testimony necessary to establish reasonable time for engineer to complete redesign work).
101. City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).
102. Buzgheia v. Leasco Sierra Grove, 60 Cal. App. 4th 374,
389, 70 Cal. Rptr. 2d 427 (1997) (“In determining whether the
normal allocation of the burden of proof should be altered, the
courts consider a number of factors: the knowledge of the parties
concerning the particular fact, the availability of the evidence to
the parties, the most desirable result in terms of public policy in the
absence of proof of the particular fact, and the probability of the
existence or nonexistence of the fact.”).
103. See, e.g., Micro-Managers v. Gregory, 147 Wis. 2d 500,
434 N.W.2d 97 (Ct. App. 1988) (there is no implied warranty of
results in a pure time-and-material software programming services
contract).
Published in The Construction Lawyer, Volume 30, Number 4, Fall 2010 © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 11