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Brandt v. Rokeby Realty Co.5/9/2005
s of the professional conform to the profession's standards of skill, care and competence, as adhered to by professionals who are in good standing in the community. Essentially, this represents a requirement that the expert be familiar with the local standard of care as opposed to a national standard of care or that "bridging" testimony be presented which states the similarity between the local and national standards. . . .
The Court is not persuaded that apartment owners and managers are "professionals" in the way that term is used in the Pattern Jury Instructions and the Restatement (Second) of Torts ยง 299A. The Court's opinion in Miley does not state that a Delaware real estate expert was necessary because apartment owners and managers are professionals. The Court found that to prove ordinary negligence the Plaintiffs would have to show that the reasonable landlord does more than meet the minimum requirements of the applicable codes. While the Court did not consider apartment owners professionals explicitly, the Court held that experts to a similar standard likely because of the extent of the regulation of the landlord tenant code. The Miley Court specifically stated that
Plaintiffs might succeed if they presented evidence of an industry practice which replaced glass in intervals of time less than every twenty years, or if they presented evidence of an industry practice which conformed specifically exempted structures to present BOCA code standards . . . .
Id. at *5, citing, Miley v. Harmony Mill Ltd P'ship, 826 F. Supp. 824, 826 (D. Del. 1993).
In New Haverford P'ship v. Stroot, 772 A.2d 792, 798-99 (Del. 2001), the Court affirmed the Superior Court's admission of an architect's expert testimony as to standard of care for a property manager when he testified that there was a national standard for building for maintenance, safety and cleanliness. Thus, there is no strict requirement that an expert must testify to the local standard for commercial landlords in Delaware. Here also, the Plaintiff has shown, through his expert, that there was an industry practice of following EPA/ NIOSH guidelines, ASHRAE guidelines, and the BOMA quality standards.
When asked about a national standard of care during his deposition, Mr. Borsari replied:
here were organizations like BOMA . . . that publish information about standards of cares. . . .
And then the government came out with -- the EPA came out with requirements concerning indoor air quality. And organizations like ASHRAE developed -- revised their standard for fresh air from five CFM per person to 20 CFM per person. They published that in 1989.
So we were aware, I was aware, BOMA and EPA, if you wanted, I used to, through BOMA and EPA, I used to keep track of their requirements. I'm not saying that everybody did but I did.
Borsari Tr. at 52-53 (emphasis added). When further asked to provide the standard of care in providing a safe rental unit between 1990 and 1995, he stated:
In 1991 -- there was a lot of dialogue between the industry and the EPA. There always is. Because if they are going to come out with a law, you can have a tremendous impact in terms of both the safety of the tenants and the operating costs of the building. . . .
Now of course, New York City is usually ahead on those issues. So, you know, our familiarity with it was much greater, you know. I mean I personally, through my group in BOMA, was very aware of these issues.
Now, to the extent that the rest of the industry was aware of it, I really can't comment on that.
Borsari Tr. at 56-57 (emphasis added).
When ask
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