Negligence of Real Estate Agent Requires Testimony of Another Agent

Question: After we purchased our Glendale home we hired a landscape architect to design the landscaping for our back yard.  Although my husband and our two sons purchased the materials and did the work, they followed the design drawings of our landscape architect.  The problem is that during heavy rains our master bedroom is flooded because of improper drainage in our back yard.  When we contacted an attorney to file a lawsuit against our landscape architect, the attorney said that he would need at least $1,000.00 to hire another landscape architect to be able to testify as an expert witness that our landscape architect was negligent.  Why do we have to pay another landscape architect to testify as an expert witness when the drainage problem is obviously due to the fault of our landscape architect?

Answer:   The general rule is that a professional such as a real estate agent, doctor, lawyer, or architect cannot be held liable for negligence without the testimony of another professional in that field.  An exception to this general rule is if the negligence is within common knowledge, for example, if a surgeon is hired to amputate a person’s right leg and negligently amputates a person’s left leg.

Unfortunately, any design defect in the landscaping for your back yard which has caused improper drainage is probably not within common knowledge, and your lawyer was correct that another landscape architect should be hired as an expert witness.  Furthermore, under Arizona law a lawsuit for negligence generally cannot even be filed against registered professionals such as architects, engineers and surveyors without the affidavit of another registered professional in the same field stating that there was negligence.

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