Where's the Proof?

When teaching the DBIA Contracts and Risk Management class, I am often asked how one goes about proving professional negligence claims.  The first thing that I explain is that being right and proving that you are right in court are two completely different things.  The rules of evidence in court are arcane and often defy ordinary logic.  Often, you have to go completely against your initial, gut reaction.

For example, in a 2010 case a laundry room caught on fire because the halogen lights above the counters ignited the sheets that were left on the granite counter space, which incidentally was the only place available in the room for the laundry.  Dockhorn v. Kitchens v. Klewenco, 1020 WL 1196425 (2010).  Even though the sheets were not touching the lights, they apparently were within 6 inches of the 12 inches available for stacking laundry on the counter.  

As a mom of 3 tweens with a particularly busy laundry room, I would rule that the designer was not only negligent in specifying lights that prohibited the use of the only flat space in the laundry room, the designer should be publically berated for the mere act of making a mom’s life more difficult.  I find it particularly cruel to have the only flat space available in the room inaccessible and even more diabolical because the space is nicely lighted.  Any mom on the jury would hang the designer out to dry.  However, the plaintiff was trying to prove professional negligence, not court ruled that to find professional negligence, the plaintiff had to introduce expert testimony.  Despite the fact that the design defied all logic and decency, the court noted that the “common knowledge” exception to the requirement to produce an expert was not applicable. 

“The Court holds that the common knowledge exception is not applicable here.  Despite the ordinary experience of jurors with kitchens and home construction projects, the facts in this case involve the standard of care for a professional kitchen designer and a professional contractor.  Here, the standard of care of a kitchen designer in selecting light fixtures for a kitchen and a contractor who installs those fixtures is outside the ordinary experience and common knowledge of the jury and beyond the capability of a lay person to decide.  Instead, to establish the standard of care for a kitchen designer and a contractor, plaintiff must present testimony of someone who is competent to testify as to whether defendants’ respective actions conformed to the standard of care for their respective professions.”

So, the answer to the question of how one proves professional negligence is that a party must produce expert testimony.  Thus, the old adage that legal proceedings are simply a means to make litigation more expensive gets more support.