Professionals are often sued in both tort and contract. So what is the difference? One is a general wrong to the public and one is a specific wrong to a contracting party. Judge Scarpulla discusses the issue in City of New York v Eastern Shipbuilding Group, Inc.
2017 NY Slip Op 31906(U) September 7, 2017 Supreme Court, New York County Docket Number: 452725/2014. The case involves fireboats.
“This action arises out of the alleged defective design and construction of two fireboats, 343 and Firefighter II, for the Fire Department of New York (“FDNY”). In July 2005, FDNY contracted with RTL, an engineering firm, to design and oversee the construction of the fireboats, and selected ESG to complete the construction. Though no longer a defendant in this action, AMSEC, LLC (“AMSEC”) agreed with FDNY in May 2008 to act as the “owner’s representative.” The City formally accepted delivery of fireboats 343 and Firefighter II in 2010 after completing sea trials and final inspection. In 2014, both fireboats were taken from service and dry-docked for inspection and defect correction. The City alleges that the fireboats were a major investment for FDNY, and numerous design and construction flaws, including a lack of corrosion prevention measures, have caused severe and premature damage to the fireboats. To address the fireboats’ design and construction flaws, the City attests that it has spent nearly two million dollars in costs and repairs and expects to spend another million dollars in · additional necessary costs and repairs. ”
“Generally, “[ w ]here the plaintiff is merely seeking the benefit of its agreement, it is limited to a contract claim.” Dormitory Auth. Of State v. Samson Const. Co., 137 A.D.3d 433, 434 (1st Dep’t 2016). “Where, however, the particular project … is so affected with the public interest that the failure to perform competently can have catastrophic consequences; a professional may be subject to tort liability as well.” Id. (citations and quotations omitted). Here, there is a factual question whether the fireboats at issue were so affected with the public interest that RTL’s alleged failure to comply with the relevant standards could result in catastrophic consequences. RTL’s assertion that the fireboats merely failed to perform as anticipated does not eliminate the issue of fact of whether accessible fireboats to address an issue, e.g., a fire on the City waterfront, could have catastrophic consequences. “