In 1980 I graduated law school, and passed the bar exam in Pennsylvania, New Jersey and Florida, states in which I had already become a licensed professional engineer for various employers and projects. I also had already begun teaching as an adjunct professor at Drexel University in 1979 (while still in law school at night, and a full time employee during the day, and don’t ask).
By 1982 I was teaching a second section of Law for Engineers, and formally “took over” this course as primary instructor in 1984.
Then in 1987 I had a bit of a shock.
One of my “slides” (on 8½ x 11 inch plastic sheets, painted with a grease pencil, conveyed via an overhead projector) discussed the “Choice of Laws” of the party claiming injury, whereas the design professional may be at risk not only pursuant to her contract, but also possibly for negligence.
The decision, Florida Power & Light Co. v. Westinghouse Elec. Corp.510 So. 2d 899 (Fla. 1987), resulted in a bit of confusion, then review and removal of that slide. Finally, I had to revise my lecture material.
I was never quite happy with that decision by the Florida Supreme Court to restrict this choice, the Economic Loss Doctrine. So as I recently read the case Tiara Condominium Association, Inc., vs. Marsh & McLennan Companies, Inc., SC10-022, decided only a little over two weeks ago, I experienced a feeling of deja vu all over again (sic).
The Supreme Court of Florida, as of March 7th, 2013, now states
“For some time … this Court has been concerned with what it perceived as an over-expansion of the economic loss rule. … Having reviewed the origin and original purpose of the economic loss rule, and what has been described as the unprincipled extension of the rule, we now take this final step and hold that the economic loss rule applies only in the products liability context. We thus recede from our prior rulings to the extent that they have applied the economic loss rule to cases other than products liability. The Court will depart from precedent .... Stare decisis will also yield when an established rule has proven unacceptable or unworkable in practice. ... Our experience with the economic loss rule over time, which led to the creation of the exceptions to the rule, now demonstrates that expansion of the rule beyond its origins was unwise and unworkable in practice. Thus, today we return the economic loss rule to its origin in products liability.”
Rarely will a practitioner live through a full swing of the pendulum of the expansion and retraction of a judicial doctrine.
Perhaps I am getting old. And so I will need to look up my old lecture notes written in WordStar on a DOS computer, and reintegrate into my course.
The case is MUST reading for all design professionals and for those who rely on their opinions and judgment. You may access the decision text via http://www.floridasupremecourt.org/decisions/2013/sc10-1022.pdf.
For those who missed our Construction CPM Conference 2013 in New Orleans, we have a consolation.
We have captured much of the presentations using Voice over Screen software, and are providing both PDFs of the PowerPoints and Papers and these videos to our attendees, who had to choose one of seven concurrent sessions. But we are also working to provide these to non-attendees at a nominal charge, which will then in turn be donated to your choice of technical association.
Check our site at http://www.constructioncpm.com for more information. Perhaps you can join us next year, January 20-24, at Walt Disney World in Florida.