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03/27/90 GEORGETOWN UNIVERSITY v. SPORTEC

March 27, 1990

GEORGETOWN UNIVERSITY, PETITIONER
v.
SPORTEC INTERNATIONAL, INC., ET AL., RESPONDENTS



Certification of a Question of Law from the United States Court of Appeals for the District of Columbia Circuit

Before Ferren, Belson, and Terry, Associate Judges, in chambers.

The opinion of the court was delivered by: Per Curiam

PER CURIAM:

This case presents the issue whether we will decide a question of law, certified to us by the United States Court of Appeals for the District of Columbia Circuit, when the certified question is the subject of an interlocutory appeal in a case pending before the United States District Court for the District of Columbia. Under the circumstances, we decline to consider the certified question at this time.

I.

In early 1987, Georgetown University (Georgetown) contracted with Daniel F. Tully Associates, Inc. (Tully), an architectural firm, for design services related to the renovation of the roof of Yates Field House (Yates), an athletic facility located on the campus of Georgetown University. The renovation plans included the installation of a new track and field on the roof of Yates. Subsequently, on April 13, 1987, Georgetown entered into a separate contract with Sportec International, Inc. (Sportec), to act as general contractor for the project. No contractual relationship existed between Tully and Sportec. Under the terms of the Georgetown-Sportec contract, Sportec was to remove the existing athletic field, track, and external roofing from the top of Yates. In addition, Sportec was to replace the roof and install artificial sports field and running track surfaces manufactured by Mondo Rubber International, Inc.

Before Sportec completed the track, bulges and blisters appeared on its surface. As a result, the track portion of the project was not completed. Georgetown advised Sportec that it was rejecting the track and demanded that it be removed and reinstalled per contract specifications. Subsequently, Georgetown filed a complaint in the United States District Court for the District of Columbia against Sportec alleging breach of contract and unjust enrichment.

Sportec answered and filed a third-party complaint against Tully alleging that Tully (1) negligently designed the track system which Sportec installed, and (2) fraudulently misrepresented and concealed design problems related to the running track. Thereafter, Tully moved to dismiss the third-party complaint on the ground that, absent privity of contract, it owed no duty to Sportec to protect it from economic loss, i.e., that the bar of privity insulated Tully from professional tort liability for economic losses to third parties.

On February 8, 1989, the District Court denied Tully's motion to dismiss Sportec's claim. The court found that Sportec had stated a valid negligence claim against Tully for purely economic losses despite the lack of a contractual relationship. The court also found that the issue involved a controlling question of District of Columbia law as to which there is a substantial ground for difference of opinion. The court concluded that an immediate appeal of the February 8, 1989, order would materially advance the ultimate termination of the litigation. Further, the District Court suggested specifically that 28 U.S.C. § 1292(b) *fn1 certification would enable the United States Court of Appeals for the District of Columbia Circuit to certify the controlling questions of law to this court. Accordingly, Tully filed a petition for permission to appeal pursuant to 28 U.S.C. § 1292(b).

On April 28, 1989, the United States Court of Appeals granted Tully's petition for an interlocutory appeal, stating that "it is unclear in the District of Columbia whether the bar of privity completely insulates Tully from professional tort liability to third parties." Pursuant to D.C. Code § 11-723 (1989), the United States Court of Appeals certified the following question of law to this court:

Under District of Columbia law, does the bar of privity completely insulate an architect from professional tort liability for economic losses to third parties with whom the architect has no contractual relationship?

II.

D.C. Code § 11-723(a) (1989) provides:

The District of Columbia Court of Appeals may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, or the highest appellate court of any State, if there are involved in any proceeding before any such certifying court questions of law of the District of Columbia which may be determinative of the cause pending in such certifying court and as to which it appears to the ...


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