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Ambiguous Affidavit Sufficient To Support Design Negligence Claim Against Engineer

Wednesday, August 11, 2010 02:11 am


Design Negligence

Benchmark Engineering Corp. v. Sam Houston Race Park, 2010 Tex. App. Lexis 3129 (April 29, 2010)

In Texas, an engineer?s affidavit of merit does not need to state a standard of review or contain statements that are admissible as evidence in a trial.

Sam Houston Race Park (the Park) sued an engineering firm, Benchmark Engineering Corporation (Benchmark), for negligence in the design and construction of the race park?s subsurface drainage. The Park wanted to install an outdoor concert venue in the racetrack?s infield but needed to ensure that the infield would drain properly. After Benchmark completed its work, the Park solicited the opinion of a third-party engineer, Ed Ulrich. Ulrich concluded that Benchmark had "failed to make a detailed and thorough analysis of the subsurface conditions at the venue" and that Benchmark had failed to install a subsurface drainage system that would have permitted the venue to properly drain. Ulrich included his opinion in an affidavit that Park submitted as part of its suit. Benchmark sought to dismiss the suit on the basis [...]

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