James A. LeBer

The appellant purchased a new condominium townhouse and subsequently discovered serious water leaks and mold.

She sued the developer, municipality, and various engineers involved in the project for negligence and breach of contract.

The motion judge granted summary judgment dismissing the action against three sets of engineers, finding they owed no duty of care to the appellant under the Anns/Cooper test and that the Professional Engineers Act does not create a private law duty of care.

The Court of Appeal upheld the dismissal, noting the engineers had no contractual relationship with the appellant, their design was not shown to be negligent, and their limited on-site inspection duties did not require physical testing.

The appellant appealed a summary judgment dismissing its claims against the respondent Comstock for inducing breach of contract and assisting in a breach of fiduciary duty.

The motions judge had found that any breach of contract occurred before Comstock was approached and that the relationship between the appellant and the co-defendant was merely that of contractor and sub-contractor.

The Court of Appeal allowed the appeal, finding that competing inferences could be drawn from the evidence regarding the timing of the breach and the nature of the appellant's involvement in the design-build project, thereby raising triable issues.