## Facts

- The City of St. Louis hired a general contractor to build a terminal plaza at Lambert–St. Louis Municipal Airport and hired an architectural firm to prepare plans and provide general construction supervision.
- Aetna issued the contractor’s performance bond, knowing the architect would be the professional in charge of supervising the work for the City.
- The project suffered construction and performance problems, including defects such as a bulging retaining wall, improper or eroded backfill in a sewer ditch, misaligned forms, and a crooked sewer pipe affecting concrete work.
- The contractor experienced financial distress and required Aetna’s assistance to continue performance.
- Aetna alleged the architect negligently failed to exercise reasonable care in supervising the work and administering the project, causing avoidable defects and increasing Aetna’s losses as surety.
- The architect denied negligence and argued Aetna failed to prove the applicable professional standard of care and breach, particularly without expert testimony.

## Issues

1. Whether Missouri law permits a surety to recover in negligence from an architect for negligent construction supervision despite the absence of contractual privity between surety and architect.
2. Whether the evidence was sufficient to support the jury’s negligence verdict, including whether expert testimony was required to establish standard of care and breach for the alleged supervisory failures.

## Decision

- The district court entered judgment notwithstanding the verdict (JNOV) for the architect after a jury awarded Aetna $15,000, and alternatively ordered a new trial due to instructional errors.
- The court of appeals held that Missouri law allows a surety to sue an architect for negligent supervision without contractual privity where the surety is a foreseeable party expected to rely on the architect’s performance.
- The court of appeals held the evidence was sufficient to allow a jury to find negligence as to certain nontechnical supervisory failures that lay jurors could evaluate without expert testimony.
- The court of appeals reversed the JNOV and remanded for a new trial, leaving in place the district court’s unchallenged alternative order granting a new trial on all issues.

## Legal Principles

- Under Missouri law, lack of contractual privity does not bar a surety’s tort claim against an architect for negligent performance of supervisory duties undertaken for the project owner when harm to the surety is foreseeable.
- An architect supervising construction owes a duty of ordinary care in carrying out supervisory responsibilities and may be liable for foreseeable losses caused by negligent supervision.
- Expert testimony is generally required to prove professional negligence on matters beyond lay understanding, but is not required for alleged failures involving ordinary, observable construction supervision within common experience.
- Where evidence supports a reasonable finding of negligence on such nontechnical matters, it is improper to remove the case from the jury through JNOV.

## Conclusion

The appellate court held that a surety may pursue a negligence claim against a supervising architect without privity under Missouri law and that the jury could assess certain obvious supervisory lapses without expert testimony; it therefore reversed the JNOV and remanded for a new trial pursuant to the district court’s alternative new-trial order.


Aetna Ins. Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472 (8th Cir. 1968)