2004AP785 Trinity Lutheran Church v. Dorschner Excavating, Inc. et al.

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“There is no dispute that OCI and Dorschner had no contractual relationship between them. For purposes of the present analysis, OCI and Dorschner were ‘strangers’ to each other who happened to be working side-by-side on a common project, not parties who had had an opportunity to ‘allocate economic risk by contract’ between them…. Thus, we conclude that the economic loss doctrine does not bar Dorschner from obtaining a judgment for contribution from OCI on account of the latter’s negligence that contributed to the loss at issue.”

And, even though the contract between Trinity and OCI is not in the record, we treat the missing contract as supporting the trial court’s conclusion that its predominant purpose was OCI’s provision of construction coordination services, not a product. Accordingly, we conclude that the economic loss doctrine does not bar Trinity’s recovery from OCI.

Finally, we reject OCI’s contention that expert testimony was required to establish whether its conduct was negligent and caused damage to Trinity.

“OCI contends that the ‘integrity of the water lateral pipe and proper construction practices for building a church are not subjects within the realm of the ordinary experiences of mankind.’ While that may well be true, jurors heard expert testimony that the water lateral was fractured when it was struck by a backhoe. They did not need an expert to tell them that, in the exercise of reasonable care by those working on a construction site and those responsible for coordinating the work, a water lateral should not be struck by a backhoe.”

Judgment affirmed.

Dist IV, Waupaca County, Hoffman, J., Deininger, J.

Attorneys:

For Appellant: John H. Schroth, Green Bay

For Respondent: Frank A. Dvorak, Minneapolis, MN; Thomas A. Harder, Minneapolis, MN