Negligence allegation seen tough to prove

The state faces significant legal hurdles if it tries to show that Bechtel/Parsons Brinckerhoff and Modern Continental Construction Co. were "grossly negligent" in their design and construction of the Big Dig tunnel ceiling that killed a woman when it collapsed in July, according to several lawyers who specialize in construction law.

To prove gross negligence, state officials must supply evidence that project engineers knew it was likely that their conduct would result in personal injury or property damage. State Attorney General Thomas F. Reilly intends to file such a civil suit this morning.

"The state would have to show that Bechtel, whether in the design phase or the construction phase, clearly recognized a significant risk with what was being done and basically said, 'Eh, we'll accept the risk,' " said James H. Landgraf, a lawyer with the firm Cureton Caplan in Mount Laurel, N.J., who is cochairman of the American Bar Association's construction litigation committee.

"The state has to find that somebody knew the cause of this collapse was in existence at the time they were designing and constructing it and didn't do anything about it," he added. "You're almost hoping there's an internal e-mail or somebody back in the cubicles that said, 'Yeah, you know, I saw that, and I told so-and-so.' "

Only if the state can prove such a scenario can it get past Bechtel's liability cap under the company's construction management contract, which prevents Bechtel from being sued for more than $150 million unless it is found guilty of gross negligence.

State officials have substantial incentive to try to remove that cap, since the costs of repairing the tunnel and investigating for additional defects will cost millions of dollars. But that is no easy task, several legal specialists said.

"Although you've got a situation where there was obviously a tragedy and mistakes apparently occurred, I don't think you can point to any of these defendants and say, 'Aha, you've done this on purpose,' " said James F. Butler 3d of the Atlanta law firm Smith Currie & Hancock .

But Nancy J. Moore, a professor at Boston University School of Law who specializes in professional responsibility, said she believes that the "higher-than-normal threshold will not be that difficult for the state to meet."

"Given what happened, it's not going to be that difficult to convince a jury that this was gross negligence," Moore said. "But the most important question will be, does this get to a jury at all?"

Sacha Pfeiffer can be reached at pfeiffer@globe.com.