In New Jersey, design professionals—such as architects and engineers—are entitled to unique legal defenses when sued. One powerful and important defense is the Affidavit of Merit Statute, N.J.S.A. § 2A:53A-27, which requires plaintiffs to make a threshold showing that a claim against a professional is meritorious. Another such defense is the exception for professionals to liability under the Consumer Fraud Act, N.J.S.A. § 56:8-1, known as the "learned professional" exception. However, a potential argument exists that impacts both legal doctrines, whereby plaintiffs may attempt to assert culpability against a professional. Thus, in any construction litigation, it is imperative to be aware of this posited argument and the misinterpretation of the law upon which this loophole is based on.  

Due to a misinterpretation of case law, plaintiffs often exploit a loophole and find a way around the protections of the Affidavit of Merit Statute and the Consumer Fraud Act exclusion for learned professionals. The argument stems from the 2005 Appellate Division case Murphy v. New Road Construction, 378 N.J. Super. 238 (App. Div. 2005). As argued, Murphy (very generally) holds that professionals do not act "within their professional capacity" while performing "site activities." Due to a common misinterpretation of Murphy, plaintiffs misuse this case frequently, resulting in a wildly inaccurate application of the law. This article shows why.