C. Defenses

• Library: SC Construction Law Desk Book (SCBar) (2013 Ed.)

C. Defenses

There are many affirmative defenses available to the design professional. As with most cases, the affirmative defenses available are to some degree dependent on the causes of action asserted. The following are affirmative defenses typically available to the design professional:

1. Failure to Comply with S.C. Code Ann. § 15-36-100

S.C. Code Ann. § 15-36-100 states as follows:

(B) . . . in an action for damages alleging professional negligence against a professional licensed by or registered with the State of South Carolina and listed in subsection (G) . . . the plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit; and
(G) This section applies to the following professions:

(1) architects; . . .
(6) land surveyors; . . .
(7) professional engineers . . .

If the plaintiff fails to file a statutorily compliant affidavit, then the negligence cause of action for breach of the standard of care may be dismissed.

It is unclear whether a breach of contract cause of action that is based on a failure to properly perform professional services will also be dismissed. It is logical that if the breach of contract cause of action is based on a breach of the standard of care and no affidavit has been presented, then the breach of contract action should be dismissed. However, the statute refers only to "professional negligence" and does not reference breach of contract actions. The implied warranty cause of action, based on Hill v. Polar Pantry, is not based on alleged breach of the standard of care; and therefore, presumably, the implied warranty cause of action would not be subject to the statute.

Even without an affidavit regarding the breach of standard of care, the plaintiff may be able to maintain a negligence cause of action if the allegations are based on the "common knowledge" exception. As S.C. Code Ann. § 15-36-100 and earlier cases⁷⁶ require, expert testimony must be presented to establish the standard of care and the breach of that standard in order to assert a professional negligence claim against the design professional. If the alleged negligence relates to issues that are within the general knowledge of laymen, then the "common knowledge" exception applies and expert testimony is not required to maintain the negligence cause of action against the design professional. S.C. Code Ann. § 15-36-100(C)(2) specifically recognizes the "common knowledge" exception. It states:

(2) The contemporaneous filing requirement of subsection (B) is not required to support a pleaded specification of negligence involving subject matter that lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.

An example of the "common knowledge" exception is where the design professional specified a structural member of a certain size and failed to notice that the contractor installed a structural member of a smaller size. Expert testimony would not be required to prove negligence because it does not require special training to know that the engineer made a mistake. If, on the other hand, the design professional designed the structural frame and specified a structural member that was too small to carry the design loads, expert testimony would be required because it is beyond the common knowledge of a layman to calculate loads and specify beam sizes.

Not surprisingly, the application of the common knowledge exception is dependent on the facts of each case. In general, if the alleged negligence is based on the failure to notice or take into consideration conditions or facts that were existing, then the court may apply the common knowledge exception. If the alleged negligence is based on judgment errors or mistakes in performing designs or construction observation services, then the professional negligence standard will apply and expert testimony will be necessary for the plaintiff to prevail.⁷⁷

2. Statute of Limitations

The applicable statute of limitations for negligence, breach of warranty, and strict liability causes of action is three (3) years.⁷⁸ Thus, the discovery rule determines when the applicable statute of limitations begins to run⁷⁹ and the discovery rule is applicable to construction defect cases.⁸⁰ "[U]nder the discovery rule, the statute of limitations begins to run from the date the injured party either knows or should know, by the exercise of reasonable diligence, that a cause of action exists for the wrongful conduct."⁸¹ To satisfy the requirement of reasonable diligence, "an injured party must act with some promptness where the facts and circumstances of an injury put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist."⁸² Therefore, claims against design professionals for breach of contract or negligence must be brought within three years of the date the claim is discoverable by the exercise of reasonable diligence.

The discovery rule inquiry focuses on the date of the plaintiff's injury, not the date of the discovery of the wrongdoer's identity.⁸³ The statute of limitations begins to run from the time a party realizes it has been injured due to the malfeasance of another party, even if the identity of the other party is unknown at that time.⁸⁴Further, the fact that the injured party may not comprehend the full extent of damage or appreciate the exact nature of the wrong is immaterial to the discovery rule analysis.⁸⁵ The statute begins to run when a plaintiff knows of a possible claim, not when the advice of counsel is sought or a full-blown theory of recovery is developed.⁸⁶ "The date on which discovery should have been made is an objective, not subjective, question."⁸⁷

It has been stated that "South Carolina's statute of limitations requires 'very little to start the clock.'"⁸⁸ Once a reasonable person has reason to believe "that some right of his has been invaded or that some claim against another party might exist," the requirement of reasonable diligence to investigate this information further takes precedence over the inability to ascertain the amount of damages or even the possibility that damages may be forthcoming at all.⁸⁹

In Republic Contracting, the design professional was successful in asserting a statute of limitations defense. In that case, the design professional designed a bridge for the South Carolina Department of Transportation. During construction, the contractor raised issues regarding the design professional's plans. The general contractor contended that the plans were confusing and difficult to follow and that the poor plans had created delays on the project. These allegations were stated in letters from the contractor to the design professional. Even though the defective plan allegations were made during construction, the court found that the contractor should have been aware that it had a...