New Bern Riverfront Development, LLC v. Weaver Cooke Construction, LLC (Lawyers Weekly No. 11-05-0546, 12 pp.) (J. Rich Leonard, J.) E.B.N.C.
Holding: Even though the plaintiff-developer does not allege that defendant National Erectors Rebar, Inc. was a licensed architect, engineer or surveyor, plaintiff does allege that National Erectors was required to “design and construct” certain components of plaintiff’s project and owed plaintiff a duty to perform the design and construction “consistent with the standard of care applicable to … [an] engineer, or architect….” Plaintiff also alleges this duty was breached and proximately caused damage to plaintiff.
Having received no indication as yet that the work performed by National Erectors does not fit the definition of “engineering” or “architecture”, the court denies the motion to dismiss the claim for professional negligence. Plaintiff has sufficiently pled a claim as it relates to any alleged engineering or architectural work performed by National Erectors.
The court also denies National Erectors’ motion to dismiss plaintiff’s common-law negligence claim against it.
Even though National Erectors was a subcontractor of plaintiff’s general contractor, plaintiff has alleged that National Erectors’ contract involved the post-tensioning concrete system, but that National Erector’s negligence caused damage to the parking deck and swimming pool. Therefore, plaintiff’s common-law negligence claim falls into one of the exceptions to the general rule that a breach of contract does not give rise to a tort action between the contracting parties.