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Matthew A. Williams


Matt: May it please the court. My name is Matt Williams. I represent Corinne Thompson Spring. Corinne Thompson is an independent administrator of the estate for her deceased husband and child who died as a result of this accident. The issue for the court to consider in this case is the scope of the duty owed by the defendant engineer pursuant to this contract. I don’t think there’s any dispute that the engineer owed a duty. The question is, what is the scope of that duty? And the engineer was hired by the owner of this development. They were developing Gurnee Mills and the Illinois Department of Transportation anticipated that there’d be a significant increase in the traffic burden in this area and in particular on the I-94 Grand Avenue interchange. As…and so, the Illinois Department of Transportation mandated that the owner developer design improvements to this interchange to deal with this increased traffic burden.

Female Judge 1: But Counsel, the architects did submit recommendations for different kinds of things like the flybridge and all of that but didn’t agree with those things and decided really they were only going to replace the deck. And so, perhaps it’s not with the architect that you might have a problem with, but it would be with IDOT for making it happen.

Matt: Well, your honor, I believe there is a question of fact as to whether or not that’s actually the case. I think the scope of the engineer’s duty in this case, you have to look at the contract and the scope of the duty in this case is clear that, Article One, it talks about the scope of services. And it refers to Attachment A of the contract. So, we have to look to Attachment A of the contract. And Attachment A of the contract has specific language within Attachment A that suggests that the scope of the duty includes, excuse me, includes improvements to this interchange. I mean, that’s the whole point of why IDOT wanted an engineer or the developer to look very carefully at this interchange to make sure it was safe for the public.

Male Judge 1: Are you asking us, Mr. Williams, to rely upon the expert affidavit in determining the scope of this duty?

Matt: No.

Male Judge 1: All right. So, would you agree after that lengthy reading of the appellate court opinion and looking at the supplemental opinion, the analysis of the appellate court is not very helpful in this case to us. Didn’t they talk out of both sides of their mouth?

Matt: I think that there was some confusion with respect to how the appellate court articulated the duty. However, I think the denial of summary judgment motion in this case is the correct decision because the scope of the duty according to the contract, it’s very clear. And let me just identify in the contract where it talks about this. It’s in Attachment A and it says, “Project description.” It says, “Scope of services for final design services for stage A I-94 Grand Avenue interchange improvements.” And so, it tells you in the contract what the scope of the design or services are and that’s to improve this interchange.

Female Judge 1: Is this separate from the bridge?

Matt: No. That’s the bridge, the median barrier is a component of the bridge deck which is part of this interchange. So, what it is, it’s I-94 and Grand Avenue are meeting here and there’s all kinds of traffic that’s gonna happen because they’re building this mega-mall. The way that the interchange is configured before the development of the mall, IDOT thinks is unsafe. So, they tell the developer, “You got to make this safe.” The developer hires the engineer and the engineer is charged with designing a improvement to this interchange. And part of that responsibility includes roadway design and structural design. Okay? Both are part of this interchange. Just a very important point and the roadway design, they talk about improvements related to the roadway design. And then when you get to the structural design, which is the bridge deck, it talks about replacing the bridge deck and replacements can have different meanings. You can replace something the way it is or you can replace it by improving it with something different, that’s more tailored to the situation that we have here, which is the increased traffic burden.

Female Judge 1: So, it’s implied. The improvement is implied as to the bridge deck?

Matt: It’s really stated in here because the improvement is to the interchange. The interchange includes the bridge deck. I don’t think there’s any dispute about that. So, the improvement is to this interchange. The interchange is where they’re concerned about traffic weaving in and out, increased what’s called traffic conflicts, increasing the potential for collisions. If you have a Jersey barrier at this interchange what happens is the barrier is, you know, three feet off the ground instead of eight inches off the ground like the barrier was in this case and the project manager for the engineering company even admitted that a barrier eight inches off the ground can cause vehicles to vault, which is exactly what happened in this case.

Female Judge 2: Rather than the evidence of the engineer, the fact based issue, going back to the language of the contract. Okay. You are correct. It begins by saying, “Phase one interchange improvements,” and then it goes along and it says, “A, roadway design, final design of plan for the preparation of phase one, proposed roadway improvements are described below. Redesign the lanes, provide a lane drop, improve alignment, proposed improvements for the widening. B, final structural design plans will be provided for deck replacement.” So, under A, we have the word improvement, redesign, additional elements all through A. In B, which is what we’re talking about here, the only thing that is said there is, “Provide deck replacement.” Am I correct in reading that?

Matt: Absolutely. Absolutely.

Female Judge 2: But you’re suggesting that we should read A and B, both to be an understanding of the parties that the engineer was to do more than design plans for replacement. B also included a contract to suggest improvements and redesign. Is that what you’re suggesting it means?

Matt: There certainly is authority within the contract to support that conclusion. Let me explain to you why. If you look at the project description portion of the contract, it talks about the scope of services and the scope of services and there’s a few other things listed there, but the scope of services for final design services related to interchange improvements. So, they’re defining the scope of services as design improvement. If you go to the roadway design and structural design, it talks about final structural design plans and I think a reasonable interpretation of this provision is it comes underneath the umbrella of the scope of services which is to improve the interchange. And by using the word replacement, I think that that can mean either you replace it the way it was, if that advances the interest of improving the interchange…

Female Judge 2: But what happens when we compare it to the more detailed statement in the roadway design section? Redesign, improve, propose improvements. Specifically, the contract requires the engineer in terms of the roadway, the other pieces of the project, improve, redesign, suggest improvements. And then B, very specifically, replace. Don’t we have to draw something from the fact that those verbs are used? Improvement in one section, replace in the other?

Matt: Well, I think that it creates an ambiguity number one. I think that there is a reasonable and alternative interpretation. One of which I think you are articulating is that the use of improvement in roadway design…under roadway design A suggests something different than the word replacement.

Female Judge 1: So, it’s ambiguous?

Matt: I think it is. I think it is ambiguous. I think it can be interpreted two different ways. And because of the conflict between the use of replacement when you’re talking about improving the overall interchange, and keep in mind the purpose of hiring this engineer is to make sure that this interchange is safe. I mean, that’s why IDOT wanted to get that done and so you can do that by replacing the bridge deck the way it was if that is the case, but there’s a problem with that. It doesn’t improve it. It makes it more dangerous. And in just with respect to the ambiguity argument, the law is clear is that if there’s any ambiguity in the contract then the court can consider parol evidence to determine whether or not…whether or not…what the intent of the parties was really under the contract and then that is becomes a question of fact for the jury to decide. And so, if a contract is susceptible to more than one interpretation as I think some of the language of the courts used in the past to determine if there’s an ambiguity then it becomes a issue where parol evidence can be used if it comes to a question of fact and it goes to the jury.

Male Judge 2: So, we’re…outside of the fact that there is a dispute as to…between you and Ms. Spring as to whether or not there is a duty under this contract, I mean, these other things that we’ve spent some time talking about are of no consequence. You do not…you agree that an expert, it’s not proper for an expert to render an opinion as to whether or not there’s a duty. That’s a question of law for the court to determine, right?

Matt: Absolutely.

Male Judge 2: All right. So, when the appellate court went far afield, that’s not at issue in this case. The expert is from your analysis is out of the equation altogether. You’re perfectly satisfied with, you know, look at the contract and we believe that reasonably under the interpretation of this contract would create a duty. That’s the only issue we have before us?

Matt: Well, I would agree with the conclusion that an expert can’t create a duty. That…there’s no question that that’s accurate statement of the law. But I think what the appellate court’s decision was that the appellate court looked at the scope of the engineer’s responsibilities under this contract. They looked at the the provision which talked about this engineer using the degree of skill and diligence employed by a similar contract. And they determined that since the scope of the contract overall include improving this interchange, there was an issue as to whether or not that responsibility included the consideration and recommendation of the Jersey barrier.

Male Judge 2: So, your position would be that the affidavit of the expert at most really creates a question of fact as to whether that duty was breached that it falls under the contract, is there where you’re at?

Matt: Correct. Correct. Correct. Yeah. I don’t think it would be fair to the defendants and it would be, I think, a misapplication of the law to suggest that any expert can create any kind of duty that is outside the bounds of the contract. I don’t believe that’s the law. And to the extent that the appellate court suggested that, you know, I can’t comment that. I think it may have been unintentional, but I think ultimately their conclusion is accurate and accurate in the sense that when you consider the scope of the duty which is to redesign this interchange to improve it.

Female Judge 3: But if we’re only looking at part B, at replacement and what does that mean, don’t we use the ordinary meaning of the word replacement?

Matt: No, because I think any word within a contract has to be looked at within the context of the contract. And I think there’s been case law that says words derive their meaning from their context. And I think that when you talk about the word replacement within the context of this contract it can be either replacing…

Female Judge 3: But as Justice Tice [SP] points out in part A, very specific words about improvement, redesign and things like that take place and in that context the contract is very clear and in part B it just says replace. It doesn’t say improve, redesign or any of that.

Matt: That’s true. That’s true. And I think…

Female Judge 3: Why is that ambiguous for us to go to external affidavit?

Matt: Because the scope of the engineer’s duties in this case was to consider improvements to this interchange and within the consideration for these improvements is the responsibility to replace this bridge deck. And so, the engineer is responsible for replacing this bridge deck. Okay? And their overall responsibility is to improve the bridge deck or the entire interchange, which the bridge deck isn’t a component.

Female Judge 3: I see.

Matt: Yeah. So, part and parcel of that responsibility is to do it as a skilled and diligent contractor would under the same similar circumstances and the affidavit of our expert says that it creates a question of fact as to whether or not they complied with that duty.

Female Judge 1: Are you saying that…saying replace encompasses with it the obligation of the engineer to improve?

Matt: If the circumstances warrant it, yes.

Female Judge 1: What do you mean by that?

Matt: Well, if based upon what a reasonably careful engineer would do in the same or similar circumstances in evaluating the design of the entire structure, if it required it to be replaced by improving it, absolutely. Absolutely. The word replace, I don’t think it should be looked at in terms of just replacing it in kind, it doesn’t say that in the contract. But rather the word replaced is used in…under the scope of services provision which includes the importance of improving this interchange.

Female Judge 2: Are we in that area, are you getting close to the area of, Hunt v. Blasius, where the contract says one thing but an engineer looking at the design, the contract should identify that it’s unreasonably dangerous and they’re sure…therefore has a duty to do something beyond the contract.

Matt: Yeah. I think that there are some differences between Hunt and this case, but I think Hunt provides for the plaintiff sort of its last argument. So, if you find that the replacement doesn’t mean improve, if you find that there’s no ambiguity to create a question of fact, Hunt then gives the plaintiff the opportunity to argue that even if a contractor is following specific plans pursuant to the contract, they still have a duty if those plans…and I think the language is so apparently defective that no competent contractor would follow. And there’s similar language in the Billman case. And so, I think under Hunt and under Billman, the summary judgment motion should still be denied because there is evidence in this case and in the affidavit that no reasonable, competent contractor would build this bridge when it is apparent that it’s defective. Now Hunt, the Hunt case, the contractor was just following the specifications of the state, which is very different from our case where the contractor or the engineer is the one that’s being hired to actually do the designs. There were no IDOT standards in our case, whereas the contractor in Hunt was just following those standards by the state.

So, I think…I think that there’s really three separate and individual…separate and distinct arguments in support of a denial of the summary judgment motion. Number one would be that the engineer had a duty to improve this bridge deck and by replacing it he had a duty…he had a responsibility to consider improvements that needed to be done. Number two, there’s an ambiguity in this contract as to whether or not replacement means replace in kind or whether or not it means replace with an alternative structure and if there’s an ambiguity creates a question of fact and it goes to the jury. Number three, if you disregard those or disagree with those three arguments, number three would be that under Hunt and Billman, that there’s an exception to that general rule where the…I have it written down, but it’s where the design…read the language. In Billman, it was where the plans are so apparently defective that an ordinary builder of ordinary prudence would be put on notice that the work was dangerous and likely to cause injury. That was the language in Billman and I articulated the language in Hunt. If the court confirms the denial of summary judgment motion in this case, I think it’s suggesting that an engineer who’s responsible for designing plans to improve this roadway can implement a design that it knows or should know is unsafe. And I don’t think that’s the law. And I think there’s authority within the contract to find that there’s a question of fact as to whether or not the engineer in this case complied with his duty under the contract. Thank you.

Male Judge: Thank you, Mr. Williams.