good morning council chief justice justices also made please the court i'm linda spring i get nervous as many times i've been here i represent jackie life and see it's to him he'll be civil engineers who agreed to design the replacement for the grand avenue bridge the bridge as you know is in gurney it crosses the i ninety four toll way and the replacement dark was in consideration to accommodate the g mills project that was going in at that time this case is a contractual duty we don't get to the issue of breach if there was no duty and the issue is what contractual duty did hill over the owners of this bridge the illinois highway authority the toll way and then western development the developer of gurney mills that was going to pay for it what was the contractual duty that hild undertook and we submit that the duty that he'll undertook was to design a replacement bridge stack in kind not to change the geometry of the bridge not to consider other ways that the bridge might theoretically be substantially safer if it had a much larger design but to design a replacement deck and the trial court answered that question correctly the trial court concluded that the contract required a replacement deck no change in the geometry the trial court said that an expert's opinion as to the as to what els hill might have considered isn't relevant isn't admissible isn't part of the consideration because the contract  defines the duties as a question of law and the appellate court agreed that the interpretation of contractual duty is a question of law but then the appellate court said there is a factual question as to when third defendants owed a duty to investigate an improved barrier having said that the contract defined the duty and not finding the duty to consider and improve barrier within the contract the appellate court said well then there's a question of fact as to that because the plaintiff's expert says so and we believe that is where the appellate court opinion goes astray duty is not a question of fact and appellate decision ers when it where is the distinction between duty and breach like that contractual duty is not a question of fact that's not the law in illinois and it shouldn't be the law in illinois jurors should not be debating about what the parties to a contract intended the parties put the intent in the contract and remember this is not a debate between the parties to the contract it's not one party to the contract saying this was your duty and the other party to the contract saying this wasn't my duty the parties to the contract understood the duties they were clear on the duties they believed that the duties were satisfied this is a third party to the contract coming in years and years after the contract was executed completed paid for bridge was finished saying that somehow there was a different duty that these parties didn't consider perhaps there is an issue with the owners that they should have put some other duties in the contract but we're not at that issue we're looking at what was the duty in this contract and if contractual duty now becomes a question of fact rather than law it will inject great uncertainty into all engineering contracts all service contracts in the state of illinois insurance costs will rise construction costs will rise design costs will rise because no longer will the parties be confident that the duties that they undertook and the contract that they sign will in fact limit and constrain their responsibilities their liabilities down the line in this case the parties were definitely clear on their contractual duties they negotiated for years before they signed this contract the record reflects that he'll actually propose initially an entirely separate bridge standard of care clause in this contract means that the that he'll would perform its design duties within the standard of court care so first you look at what the duty is that he'll undertook which is to replace the deck and then what did they do that design within the standard of care so if they had designed substandard concrete or concrete that was too thin or as part of their contract they were to also design a cantilever sign in if they had  ed that sign in such a way that it fell down that would be a deviation from the standard of care within the design project that it him under took but as this court set in for follow up plans of governments question are you saying that the standard of duty and then you look at that duty and the standard of care clause says perform that duty within the standard of care of generate a design consistent with your duty that meets the standard of care not some new expanded duty he'll also have proposed widening the gurney the grand avenue bridge and the wrong owners rejected that proposal they put it in as a possible second phase after this phase the second phase was never undertaken the owner's after a good deal of consideration and the record has several hundred pages of bills proposal and all of the studies that went into it and the highway studies that went into this consideration of what was going to be done with this bridge and this interchange alternately the owners decided that they wanted hill to do two things redesigned the western ramps which were the side where the mill where they grew in emails project is redesigned those ramps which hill did designed ramps that had went from they had been one lane ramps they went to two lane ramps merging to one lane ramps in that project he'll have to consider the barriers that were there in existence and whether new barriers should be applied that's called a barrier warrant analysis there is thirty forty pages of engineering studies regarding the barrier war analysis that he'll perform for the western ramps that were being entirely reconstructed so that was the first part of the country and that was an improvement to the existing ramps they were to be different so that they could accommodate more traffic at once mostly leaving the mill the second thing that hill agreed to do was to replace the design a replacement bridge deck and cantilevered sign and that was because the current bridge which had been constructed in one thousand fifty eight that deck was in very poor condition not that it was unsafe and needed crossover barry protection not that it should've been wider not that it should have been entirely replaced but the deck was in poor condition misfiring i have i have to re w or court decision which i think at least at this point is contrary as to how you identify their decision so tell tell me where i'm going wrong or it's a little lengthy but i think i think it's important ok because i think it's basically contrary to what you said they probably courts as those based on the plain language of defendants contract we conclude that they like labored under a duty to submit plans to replace the bridge deck as it existed prior to the construction project of which the pennants were a part but they also owed a duty to perform the contrast build contractual task using the degree of skill and diligence normally employed by professional engineers and that's an risk that's already been thrust by couple questions having determined as a matter of law a fact a matter of law what duty the contract imposed on defendants our next question becomes whether plaintiff was has presented any evidence to support her claim that defendants breached their duty we conclude that she has in the form of ramesses affidavit indicating that an engineer acting within the standard of care while creating plans to replace the bridge deck would have considered and designed to improve median barrier last paragraph defendants argue that we may not consider that rameses affidavit affidavit to help determine the scope of defendant's duty or whether they may have breached it because in or under illinois law in the absence of ambiguity contract of interpretation is a question of law for which expert testimony would not be appropriate however we interpret the contract independent of the ram affidavit from the contract language alone we determine that the fence over to do it to quote used to degree of skill and diligence normally employed by professional engineers and of quote when they decide to bridge  design the bridge deck replacement after determining the contracted to terminate imposed on defendants a duty to replace the bridge deck by using the degree of skill in diligence normally employed by professional engineers we move to the next question whether defendant's actions breached the standard of care it's when we answer the next question the breach that the ramage this affidavit becomes important not by reading that i don't you mean to suggest that you may be right or wrong with respect to whether or not there is a duty and a breach of duty but i believe the first portion of your argument is that they confused duty and breach and that seems pretty  ramesses affidavit to support the duty analysis seems pretty clear that they found that there be a legal duty under the clause already discussed and only one and a breach of duty as to that cause when they that there is a factual question as to whether defendants owed a duty to investigate and improve the barrier so they use grey misses affidavit not simply to a talking to what p if i had it did have it the the dissent said the dissent states well there it is it is in the supplemental can engine oil of rehearing it is a five fifty eight it's at the bottom of the first column as we stated repeatedly we hold that there is at least a factual question as to whether the defendant owed a duty to investigate and improve medium barrier holding that there is a question of fact as to whether they was a duty to investigate falls short of even holding that there was a duty to investigate but they are finding that there is a question of fact about the duty reading at the bottom of the first column which is on said five fifty eight whether they do it was carried out correctly they also say that there is a factual question as to the duty and that i believe is a mistake because there is nothing in the contract that as i said the bridge required the deck required replacement there were areas of the lamination the concrete surface had been patched the record says that there was a horrendous number of partial dept patch areas and that's why the deck had to be replaced but there was no consideration that the bridge had to be changed substantially also either drawings submitted with the contract and when both parties the drawings would be what submitted with the contract but of course it was his obligation to draw out the final drawings for a building that was mostly what hill was retained to do as a civil engineer to prepare the dr when the contract was signed of course those drawings hills detailed drawings did not yet exist and you're right there are no drawings that show what this barrier should look like except things that they should look like concrete meeting about four feet fourteen feet wide and about six feet tall tall concrete raised item but there is no discussion in the contract that they were going to be substantial several feet high several feet wide jersey barriers running down the middle of the current of the bridge and as raymond says extending well beyond the limits of the bridge and past the ramps to dillies road intersection on the east and to the mall entrance on the west drawings of what was intended in those proposals yes there are does that answer your question ok so the scope of the work was clear under the contract and hill designed the two ramps merging down to two lanes working down to one lane and there was no ambiguity the parties did not find any ambiguity the appellate court decision would require skill to have expended substantial funds the kind of funds that i recommend represented by the barrier warrant analysis for the western ramps that kind of money to determine what should the barrier look like is it safer with a barrier than without is the bridge wide enough to accommodate the barrier plus the space that you need because cars tend to shy away from the barrier what will we do at the end of the barrier where there's an intersection of another road is the bridge strong enough to support this the this concrete none of the bill would not have been paid for any of those considerations and range doesn't say that the bridge was on reasonably dangerous without it remember says hill was required to consider these aspects free as a volunteer and draw up proposals free as a volunteer and submit them to the owners and then you course i'm looking at the question if you had done that and the owners had declined it as they declined the other two proposals here would then have submitted the very same proposal that is here now in that ring mr nel says deviates from the standard here i see that my time is almost up i ask this court to conclude that the contract did define the scope of the duty that the duty did not include any consideration of a barrier warrant or bury a war describe the roadway improvement of the two of the lanes that were going to be improved the ramps were going to be improved on the western part of the bridge that's part of the contract as to part of the contract it said please the court my name is matt williams i represent green thompson in the spring curry thompson is independent minister of the state for her deceased husband and child who died as a result of this accident the issue for the court to consider in this case the scope of the duty owed by the defendant engineer pursuant to this contract i don't think there's any dispute that the engineer owed a duty the question is what is the scope of that duty he had the engineer was hired by the owner of this development they were developing gurney mills and the order department of transportation anticipated that there be a significant increase in the traffic ferdman in this area and in particular on the i ninety four grand avenue interchange  in so the only department of transportation mandated that the owner developer design improvements to this interchange to deal with this increased traffic burden  engineers duty in this case you have to look at the contract and the scope of the duty in this case is clear that article one to talks about scope of services and it refers to attachment a of the contract so we have to look to attachment  point of why i doubt wanted an engineer or the developer to look very carefully at this interchange to make sure it was safe for the public are you asking us mr williams to rely upon the expert affidavit and the term in the scope of this no so would you agree after that length reading of the appellate court opinion and looking at the supplemental opinion the analysis or is not very helpful in this  think the and didn't they talk out of both sides of their mouth i think that there was some confusion with respect to how the appellate court articulated the duty however i think the denial of summary judgment motion in this case is the correct decision because the scope of the duty according to the contract it's very clear and let me just and identifying the contract where talks about this it's an attachment a that says project description it says scope of services for final did not design services for stage a i ninety four grand avenue interchange improvements and so it tells you in the contract what the scope of the design or services are and that's to improve this interchange and that is separate from the bridge no that's that's the bridge the median barrier which is a component of the bridge deck which is part of this interchange so what it is it's i ninety four and grand avenue are meeting here and there's all kinds of traffic that's going to happen because they're building this make them all the way that the interchange is configured before the development of the mall i doubt thinks is unsafe so they tell the developer you got to make this safe the developer hires the engineer and the engineer is charged with designing a improvement to this interchange and part of that responsibility includes roadway design and structural design ok both are part of this interchange just a very important point in the wrong way design they talk about improvements related to the roadway design and then when you get to the structural design which is the bridge back it talks about replacing the bridge stack and replacements can have different meanings you can replace something the way it is or you can replace it by improving it with something different that's more tailored to the situation that we have here which is an increased traffic because of the it's implied the improvement is on the birds that it's really stated in here because the improvement is to the interchange the interchange inclusions includes the bridge deck and all these any dispute about that so the improvement is to this interchange interchanges is  where they're concerned about traffic weaving in and out increased what's called traffic conflicts increasing the potential for collisions if you have a jersey barrier at this interchange what happens is the barrier is you know three feet off the ground instead of eight inches off the ground like the barrier was in this case and the project manager for engine the engineering company even admitted that a barrier eight inches off the ground can cause me to close the vault which is exactly what happened in this case where is it within the evidence of of the engineer the fact based issue going back to the language of the contract right from your crap it begins by saying phase one interchange improvements and then it drop improve alignment proposed improvements for the widening be file structural design plans will be provided for dac replacement so under a we have the word improvement redesign additional elements all who engage in b is what we're talking about here the only that said there is provide back replacement correct in reading that absolutely absolutely but you're suggesting we should read a and b both to be understanding of the parties that the engineer was who do more then design plans for placement be also if you look at the project description portion of the contract it talks about the scope of services and the scope of services and there's a few other things listed there but the scope of services for final design services related to interchange improvements so they're defining the scope of services as design improvement if you go into the roadway design and structural design it's talks about final structural design plans and i think a reasonable interpretation of this provision is it comes underneath the umbrella of the scope of services which is to improve the interchange and by using the word replacement i think that that can mean either you replace it the way it was if that if that advances the interest of improving the interchange but what if we compare it to the more detailed statement in the roadway design section redesign improve propose improvements specifically the contract  requires the engineer in terms of the roadway the other pieces of the project improve redesign suggest improvements and then be very specifically replace you don't have to draw some thing from the fact that those those verbs are used improvement one section replacing the other well i think i think that it creates an ambiguity number one i think that there is a reasonable an alternative interpretation one of which i think you are taking lane is that  the use of improvement in roadway design on the roadway design a suggest something different than the work replacement so it's a vigorous i think it is i think it is a big yes i think it can be interpreted two different ways and because of the conflict between the use of replacement when you're talking about improving the overall interchange you keep in mind then the the purpose of hiring this engine ear is to make sure that this interchanges is safe i mean that's why i want to get that done and so you can and you can do that by replacing the bridge deck the way it was if that is the case but there's a there's a problem with that is it doesn't it it doesn't improve it it makes it more dangerous  the whether or not whether the intent of the parties was really under the contract and then that is becomes a question of fact for the jury to decide and so if a contract is subset to bull for more than one interpretation is i think one some of the language that the courts used in the passive term if there's then it becomes a issue where paul evidence can be used it becomes a question of fact and it goes to the jury but we're outside of the fact that there is a dispute as to between you and ms currie as to whether or not there is a duty under this contract i mean these other things that we've spent some time talking about are of no consequence if you do you do not you agree that an expert it's not proper for an expert opinion as to whether or not there's a duty that's a question of walker the court to determine right absolutely all right so when the appellate court when firm feel that's not it issue in this case the expert is from your analysis is out of the equation altogether you're perfectly satisfied with you know look at the contract and and we believe that reasonably and the interpretation of this contract would create a duty that's the only issue we have before well i think i would agree with the conclusion that an expert can create a duty ok that there's no question that that's that's accurate statement of the law but i think what the appellate court's decision was that the appellate court looked at the scope of the engineers responsibilities under this contract they looked at the the provision which talked about this engineer using the degree of skill and diligence employed by a similar contract and they determined that since the scroll of the contract overall include improving this interchange there was an issue as to whether or not that was sponsibility included the consideration and recommendation of the jersey area so your position would be that the affidavit of the expert it most any expert can create any kind of duty that is outside the bounds of the contract and i don't believe that's the law in to the extent that the apollo course adjusted that you know i can't comment that i think it may have been an unintentional but i think ultimately their don't we use the ordinary meaning of the word placement i know because i think any word within a contract test to be looked at within the context of the contract i think there's been case law that says words derive their meaning from their cont l because the scope of the engineers duties in this case worse to consider improvements to this interchange and within the consideration for these improvements is  responsibility to replace this bridge deck and so the engineer is responsible for replacing the spreadsheet ok and their overall responsibility is to improve the bridge deck or the entire interchange which the bri deck is in a component i think yeah so so part and parcel that responsibility is to do it as a skilled and diligent contractor would under the same similar circumstances and the affidavit of our expert says it's that that the creates a question of fact is whether or not they complied with that duty are you saying that same place income persist with it the abrogation of the engineer to prove if the circumstances warrant it yes on what do you mean that well if if based upon a what a reasonably careful engineer would do in the same or similar circumstances in in valuating the design of the entire structure if it required it to be replaced by improving it absolutely absolutely the word replace i don't think it should be looked at in terms of just replacing it in kind it doesn't say that in the country but rather the replaced is used in under the school for services provision which includes the importance of improving this interchange and we in the area doing the area o argument so if you find that the replacement doesn't mean improve if you find that there's no ambiguity to create a question of fact hard to bend gives the plaintiff the opportunity argue that even if a contractor is following specific plans pursuant to the contract they still have a duty if those plans i think the language is what is sole parent leave defective that no competent contractor would fall in there similar language in the  so i think under hunt's in under bill mn the summary judgment motion should still be denied because there's evidence in this case and in the affidavit that no reasonable competent contractor would build this bridge when it is apparent that it's the fact now hunt the hunt case the contractor was just following the specifications of the state which is very different from our case where the contractor or the engineer is the one that's being hired to actually do the designs there were no i doubt standards in our case whereas the contractor in one hundred was just following those standards by the  so i think it i think that there's really three separate individual separate and distinct arguments in support of the denial of the summary judgment motion number one would be that  engineer had a duty to improve this bridge back and by replacing it he had to do he had a responsibility to consider improvements that needed to be done number two there's an ambiguity in this contract as to whether or not replacement means replacing kind or whether or not it means replace with an alternative structure and if there's an ambiguity creates a question of fact it goes to the jury number three if you if you disregard those or disagree with those three arguments number three would be that under hunt and bellman that there's an exception to that general rule where the i have it written down but it's where the design read the language in building it was where the plans are so apparently defective that an ordinary builder of ordinary prudence would be put on notice that the work was dangerous dangerous and likely to cause injury there was a language until a minute and i a rticulated the language and hunt if the corpse confirms the denial of summary judgment motion in this case i think it's suggesting that an engineer who is responsible for designing plans to improve this roadway here and implement a design that it knows or should know is unsafe and i don't think that's the law and i think there's there's there's authority within the contract to find that there's a so why doesn't the senate of care created duty because the standard of care that's the question that i was asked to look at more more deeply because of this court's decision in forensic to start with friendship's says that the standard of care clause does not expand the duty the standard of care that was looked at in french it was the common law in and says engineers must exercise the degree of care and skill ordinarily required of other civil engineers in the community that the state the common law standard of care clause that was applied in friendship because there wasn't a written contract with their clause standard of care clause and this conscious contract says the engineer must exercise the degree of skill and light pole in the middle of the traffic lanes and the owner wants it to stay there i think the engineer has a duty to talk about that but even ramish doesn't say that this was an obvious  consider and analyze the data failed to consider crossover protection failed to submit for consideration possible crossover consideration protection never says it is obvious that these barriers are needed there's a long set of studies that he's would require hill to undertake that are very expensive and time consuming they contain information that hill did not have contrary to what the plaintiffs said there is no evidence in this record at all that this intersection was dangerous and that it needed improvement because it was going to be dangerous the concern that is replete throughout the record is that traffic would be slowing down substantially because there would be a lot more traffic and we needed to do something to manage the additional traffic hill proposed to other designs to handle the additional traffic that the owner rejected and the additional traffic was going to be handled with the ramps there isn't anything in the record that says it was dangerous and somebody should look at why it was dangerous that there were so many accidents and that there are going to be a lot more accidents that's not in this record and remus doesn't say that this was obvious  to the question of ambiguity first of all there's not a case the plaintiff has cited where some third party twelve twenty years later gets to say that the contract was ambiguous when the parties to the contract did not find i ambiguous hill was paid he'll prefer hill prepared his design he was paid the bridge was built or the replacement deck was put on and the parties didn't consider it to be ambiguous at all and if we consider that we need some parole evidence the parole evidence that would be admissible to the intent of the parties is not raised as affidavit it is the statement of the contracting parties and you have the project managers testimony which mr soong must have said fifteen times if not more the contract required a replacement it did not require a redesign it did not require a change in the geometry i think my time is up there is the lights on are there any other questions if not i would ask this court to affirm the trial court's entry of summary judgment in