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Seven Tree v. Kallberg (corrected 1-29-97)
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MAINE SUPREME JUDICIAL COURTReporter of Decisions
Decision: 1997 ME 10
Docket: KNO-95-792
Submitted on briefs December 5, 1996
Decided January 23, 1997

PANEL: WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, DANA, and LIPEZ, JJ.
SEVEN TREE MANOR, INC. v. KEITH KALLBERG
GLASSMAN, J.
  
	[¶1]  Keith Kallberg appeals from a judgment entered in the Superior
Court (Knox County, Kravchuk, J.) on a jury verdict awarding damages to
Seven Tree Manor, Inc. (Seven Tree) on its complaint against Kallberg. 
Kallberg contends the trial court erred in denying his renewed motion,
pursuant to M.R. Civ. P. 50(b), for a judgment as a matter of law on the
ground that it had not been established by expert testimony that he had
breached the standard of care required of a professional engineer.  We affirm
the judgment.  
	[¶2]  The record reflects the following undisputed facts: In October
1989, Barwick Property Services, Inc. (Barwick) entered into a contract
with Seven Tree for the design and replacement of a septic system at the
Seven Tree Nursing Home located in Union.  Chapter 214 of the Subsurface
Wastewater Disposal Rules, Department of Human Services Division of
Health, required that the septic system be designed by an engineer and that
"[t]he property owner shall retain the designing engineer to supervise the
construction of the system." A second contract was entered into between
the parties in June 1990, providing that Kallberg, a licensed professional
engineer, and the designing engineer of the system, would supervise its
construction.  The construction of the system by Donn Bowden, Inc., was
started in early April 1990.  Although Joe Noel, a licensed soil scientist
employed by Barwick, visited the construction site four times during the
month of June 1990, for approximately one hour each visit, and took
photographs that he shared with Kallberg, on none of his visits did he
observe any equipment working at the site.  On his last visit on June 26,
1990, two of the four leach fields had been covered and two were still
exposed.  Kallberg did not visit the site during the construction of the
system.  Almost immediately following the completion of the construction at
the end of August 1990, problems developed in the system.  It was
determined that the biodiffusers, the part of the system placed throughout
the four leach fields and covered with top soil, had been cracked and
damaged in the course of installation.  This resulted in a constriction or
blockage of the flow of wastewater through the system and caused the
system to fail.  The septic system had to be replaced.  
	[¶3]  By its complaint against Kallberg, Seven Tree sought damages
alleged to have been caused by Kallberg's negligent supervision of the
construction of the system.  At the trial of this case{1} the court denied
Kallberg's motion for a judgment as a matter of law.  The jury found that
Kallberg had negligently supervised the construction of the septic system
and awarded $10,000 in damages to Seven Tree.  Following the entry of the
judgment in favor of Seven Tree, the trial court, after a hearing, denied
Kallberg's renewed motion for a judgment as a matter of law, and Kallberg
appeals.  
	[¶4]  Kallberg contends the trial court erred by denying his motion for
a judgment as a matter of law.  He argues, as he did before the trial court,
that the insufficiency of the evidence adduced at the trial by Seven Tree,
including the testimony of its witness Albert Hodsdon, a licensed
professional engineer, to establish the standard of care required of Kallberg
in supervising the construction of the septic system and his breach of that
standard, entitled him to a judgment in his favor as a matter of law.  We
disagree.  
	[¶5]  In reviewing the trial court's denial of Kallberg's motion for a
judgment as a matter of law, we view the evidence in the light most
favorable to Seven Tree, in whose favor the jury verdict was returned, and
the judgment must stand unless manifestly wrong.   Libby v. Concord General
Mut. Ins., 452 A.2d 979, 981 (Me. 1982); George v. Guerette, 306 A.2d 138,
145 (Me. 1973).  
	[¶6] A number of decades ago, we established the principle that when
the negligence and harmful results are not sufficiently obvious as to be
within common knowledge, expert evidence is essential to sustain an action
for negligence against a physician or surgeon.  Cyr v. Giesen, 150 Me. 248,
252, 108 A.2d 316, 318 (1954).  We have affirmed that principle as it
relates to a claim of negligence against a lawyer.  See Jim Mitchell v.
Jackson, 627 A.2d 1014, 1017 (Me. 1993) (expert evidence not required to
establish attorney's breach of duty "in cases where the breach or lack
thereof is so obvious that it may be determined by the Court as a matter of
law, or is within the ordinary knowledge and experience of laymen")
(citation omitted).  We have not previously addressed when expert testimony
is necessary to prevail in an action for negligence against a professional
engineer.  We are urged by both parties to address this issue.  The parties
contend that the rationale for the principle concerning expert testimony to
establish negligence of a medical or legal professional is also applicable to
the profession of engineering.  They point to 32 M.R.S.A. § 1251 (1988 &
Supp. 1996) that provides, in pertinent part: 
	3.  Practice of professional engineering.  The term
"practice of professional engineering" shall be held to mean any
professional service, such as consultation, investigation,
evaluation, planning, design or responsible supervision of
construction in connection with any public or private utilities,
structures, buildings, machines, equipment, processes, works or
projects, wherein the public welfare or the safeguarding of life,
health or property is concerned or involved, when such
professional service requires the application of engineering
principles and data.  

	4.  Professional engineer.  The term "professional
engineer" means a person who, by reason of a knowledge of
mathematics, the physical sciences and the principles of
engineering, acquired by professional education and practical
experience, is qualified to engage in engineering practice as
defined.  

They also point to 32 M.R.S.A.  1301-1361 (1988 & Supp. 1996),
providing for the establishment of the State Board of Registration for
Professional Engineers and defining its powers and duties, and section
1256, providing, inter alia, that it is a Class E offense for a person to
practice or attempt to practice professional engineering without being
properly registered by the Board.  
	[7]  We find the argument of the parties persuasive and, accordingly,
conclude that the principle articulated in Cyr and Mitchell is also applicable
to an action for negligence against a professional engineer. 
	[8]  In the instant case the jury heard evidence that Kallberg was the
designing engineer for the septic system to be installed at the nursing
home.  Seven Tree retained Kallberg to supervise the construction of the
system.  Kallberg never visited the construction site.  Rather, he delegated
this duty to Noel, who was not an engineer, had no training for supervising
the construction of the system and testified it was not his duty to do so.  He
was not present when the leach fields were being covered.  It was
undisputed that the system failed because of damage to the biodiffusers in
the course of the construction of the system. 
	[9]  In viewing all the evidence in this case in favor of Seven Tree, as
we must, we conclude that the trial court properly determined that the
alleged negligence of Kallberg and the harmful results are sufficiently
obvious to be within common knowledge and properly denied Kallberg's
motion for a judgment in his favor as a matter of law.  
	The entry is:
						Judgment affirmed. 
                                                                 
Attorney for plaintiff: Stephen P. Beale, Esq. Skelton, Taintor & Abbott P O Box 3200 Auburn, ME 04212-3200 (Seven Tree Manor, Inc.) Attorney for Donn Bowden, Inc.: Bruce Mallonee, Esq. Rudman & Winchell P O Box 1401 Bangor, ME 04402-1401 Attorney for defendant: Patrick S. Bedard, Esq. P O Box 366 Eliot, ME 03903
FOOTNOTES******************************** {1} This case was consolidated with two other cases. No appeals have been taken from the other judgments entered following the trial of the consolidated cases.