Massachusetts Appeals Court Decision Is Good News For Peer Review Consultants

Engineers and other professionals who provide peer review consulting services for municipalities in Massachusetts can breathe easier after the decision of the Massachusetts Appeals Court in Meridian at Windchime, Inc. v. Earth Tech, Inc., 81 Mass. App. Ct. 128 (2012).

In Meridian, the developer of a subdivision in North Attleborough claimed that the town's peer review consultant, Earth Tech, negligently failed to discover deficiencies in work performed by the developer's contractor (who was out of business). As a result, the developer needed to correct these deficiencies at a considerable cost. Although Earth Tech owed the developer no duty under its contract with the town, the developer argued that Earth Tech was still liable for the foreseeable consequences of its failure to perform under the contract. The developer reasoned that because Earth Tech was the sole engineering inspector approved by the town, the developer reasonably relied on Earth Tech's inspections as its "best protection against costly problems down the road."

Nutter obtained a dismissal of Meridian's claims on summary judgment in Bristol Superior Court. Meridian appealed, and Nutter obtained a favorable decision from the Massachusetts Appeals Court, which affirmed the Superior Court's decision.

The Appeals Court found that, absent a contractual relationship, a professional employed by a town to inspect the construction of a subdivision does not owe a duty of care to a developer or its contractor unless the developer reasonably relied on the professional's services to the town and the professional was aware of this reliance. Focusing on the reasonableness of the developer's reliance on Earth Tech, the Appeals Court distinguished Meridian from the Supreme Judicial Court's holding in Craig v. Everett M. Brooks Co., 351 Mass. 497 (1967). In Craig, the plaintiff relied on the services performed by an engineering firm on behalf of a third party. The SJC held that the plaintiff's reliance was reasonable because the engineering firm knew that the services it provided were...