Lawsuits filed against architects and engineers commonly assert claims of professional negligence, alleging that an architect or engineer failed to exercise the “standard of care.” These cases largely hinge on a battle of the experts opining on whether the architect or engineer exercised, or departed from, the care that another similarly situated architect or engineer would have exercised.
In addition to proving that the architect or engineer owed a duty of care to the complainant in the first place, and that the duty was breached in the second place, the plaintiff must also prove the damages it suffered. One emerging trend in the bid to convince a jury that professional malpractice occurred involves the use of what is called a “reptile strategy.”
While tort lawyers in the past appealed to jurors’ sympathy for a plaintiff who suffered harm or injury, this new approach appeals instead to jurors’ so-called reptile brains — that is, the part of the brain that controls the fight-or-flight response.
Lawyers using the approach try to convince jurors that the defendants’ conduct could have affected the jurors themselves (inspiring a sense of self-preservation) or those they know (playing on the notion of community safety). By appealing to common fears thought to be housed in the lower or “reptilian” parts of the brain, the strategy seeks to invoke an instinctive response aimed at survival and protection that overpowers cognitive centers and reasoning.
The theory behind this tactic was published more than a decade ago in Reptile: The 2009 Manual of the Plaintiff’s Revolution (David Ball and Don Keenan; New York City: Balloon Press, 2009) and has recently been gaining traction. Some argue that a fight-or-flight-driven verdict bears little relationship to the evidence and/or violates the golden rule that jurors must base their verdict solely on the evidence and not sympathy, bias, guesswork, or speculation.
But that hasn’t stopped it from being used in the engineering and construction industry, where safety is the paramount concern. Plaintiffs’ lawyers will direct jurors to a building code, safety guideline, or accepted standard of care; attempt to get defense witnesses to agree that the rule or standard exists and applies in this case; demonstrate to jurors how the defendant broke the code or rule; and then suggest that breaking the rule put the entire community at risk. Next, they will attempt to convince jurors that they — and they alone — have the power to reduce or eliminate the resulting danger and improve the community’s safety.
Data on jury verdicts in construction cases are sparse, but there have been a number of hefty jury verdicts awarded recently involving building code violations or job-site safety standards in which the reptile strategy seems to have been used successfully. One resulted in a $38 million jury verdict in California. The allegations revolved around whether a hotel’s second-story walkway railing was 8 in. too short (Von Normann v. Newport Channel Inn). Another was a case in Illinois in which a jury awarded $64 million to an ironworker who alleged negligence on the part of a structural engineering company and others (Bayer v. Garbe Iron Works Inc.). A third was in Texas, where a jury levied a $33 million judgment against a general contractor because warning signs were not in place at a construction zone (Roberts v. Bick’s Construction Inc.).
Reptilian tactics have also been at play recently in more garden-variety construction cases tried by juries. One example involved a breach-of-contract dispute between a commercial landlord and a tenant over the build-out of leased space. Even though monetary damages were the only remedy sought under the lease, the tenant’s primary argument to the jury was the alleged failure by the landlord to ensure that structural permits were in place prior to the placement of a new roof on the commercial building during the renovation. The tenant argued to the jury that a dangerous construction had taken place at the leased space that imperiled all members of the community. The tenant asked numerous questions in the deposition that centered on the safety of the roof renovation, making the line of argument clear: Permits exist to make structural renovations safe. If the landlord’s roof alterations lacked a permit, then the building was not safe.
In this case, rather than presenting arguments that focused jurors’ attention on the duty of care owed under the contract or breached under the terms of the lease, the plaintiff’s lawyers focused on whether the commercial roof on the leased space posed a threat to the community — not just the tenant. Although the jury returned a verdict that was in favor of the landlord, jurors could easily have shifted their focus from determining the actual issues of the case to reaching a verdict based on safety concerns for themselves and their community. In professional negligence cases, it is all too easy for plaintiffs to appeal to the jurors’ emotional response to safety issues in the design of structures.
What’s the Defense?
Professional liability carriers defending negligence cases often undermine the reptile approach by demonstrating — through expert testimony on rebuttal — that the standard of care is susceptible to more than one interpretation and/or is not what a plaintiff’s expert says it is. They may also argue that safety rules are not absolute and/or that the “proper” design decisions by the architect or engineer depend on multiple factors and considerations. Counsel may also show how a different safety rule overrides the one allegedly broken or that the rule was not, in fact, violated.
Depending on the circumstances, the defense could also establish that it was reasonable to depart from the standard of care in that situation or that the alleged safety rule was violated inadvertently rather than intentionally.
Regardless, engineers who find themselves facing lawsuits that allege negligence and/or violation of a rule, code, or standard of care should be ready to combat the emotionally manipulative reptile tactic with expert witnesses and cold, hard facts.