Professional negligence and negligent misrepresentation against design professionals are significantly different. With the exception of having to prove conduct that deviated from the professional’s standard of care, these tort theories require different proof and do not overlap. However, the line of demarcation between the two is becoming increasingly blurred. More and more, when plaintiffs are faced with the Pennsylvania Economic Loss Doctrine defense to a professional negligence claim because of a lack of contractual privity, they attempt to reclassify their claim to one of negligent misrepresentation without properly amending their allegations.
This reclassification without amendment has wide-reaching impacts ranging from the statute of limitations defense to inefficient discovery, including second depositions of witnesses who have already testified. The absence of privity demonstrates the lack of a professional relationship, suggesting that the pleaded claim is one for ordinary negligence. Unpredictability and inefficiency are the inevitable result of the blurred lines of demarcation between professional negligence and negligent misrepresentation. Further, litigants and courts appear to be grappling with the applicability of the certificate of merit rules relative to each tort theory.
