concurring in part and dissenting in part.
I respectfully concur as to the majority's conclusion that summary judgment was properly entered in favor of CCL. However, I disagree with the majority's conclusion that summary judgment based on the economic loss doctrine was appropriate as to TTE.
Gunkel and most of the cases cited by the majority are distinguishable because they did not involve professional services arising outside of contract. Specifically, I find Gunkel distinguishable because the "product or service" at issue was the fa-gade added to the exterior of the plaintiffs' home and not an engineering or design claim. Gunkel v. Renovations, Inc., 822 N.E.2d 150, 156 (Ind.2005), reh'g denied, Most of the cases cited by the majority also did not involve a claim of professional error. See Reed v. Central Soya Co. Inc., 621 N.E.2d 1069, 1071 (Ind.1993) (addressing claims of contaminated feed), modified on other grounds by 644 N.E.2d 84 (Ind.1994); Choung v. Iemma, 708 N.E.2d 7, 14 (Ind.Ct.App.1999) (addressing the plaintiff's claims that the defendants "negligent ly constructed the foundation of the house, together with the garage floor, drainage for the footers, and the septic system"), reh'g denied; Jordan v. Talaga, 532 N.E.2d 1174, 1181 (Ind.Ct.App.1989) (addressing a claim of negligence against a developer of land), reh'g denied, trans. de*818nied; and Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933, 938 (Ind.Ct.App.1996) (noting that the factual basis for the plaintiffs' claims rested upon the failure to deliver electricity).
The majority cites two cases that involve a claim against a professional for the proposition that a physical injury is necessary. Specifically, the majority notes that "an exeeption to the economic loss doctrine arises in the absence of privity when an architect creates a condition that is imminently dangerous to third persons and injury has resulted." Op. at 813 (relying on Hiatt v. Brown, 422 N.E.2d 736, 740 (Ind.Ct.App.1981)). The majority also holds that there is no exception to the economic loss doctrine that permits recovery in negligence "when there has been no physical injury or damage to property." Op. at 813 (relying upon U-Haul Intern., Inc. v. Mike Madrid Co., 734 N.E.2d 1048, 1056 (Ind.Ct.App.2000)). I cannot conclude that these cases require a personal injury merely because they involved personal injuries and did not address a situation in which the risk of imminent danger exists but personal injury has not in fact resulted. See U-Haul, 734 N.E.2d at 1050-1051 (noting that the case involved a wrongful death suit); Hiatt, 422 N.E.2d at 737 (noting that the case involved serious personal injuries). Further, the court in Hicnit did not explicitly require a physical injury, but rather held that "[iJn this state, the privity barrier has repeatedly collapsed if it is established that the architect's design was done so negligently as to create a condition imminently dangerous to third persons." 422 N.E.2d at 740. The court in U-Haul did not mention the economic loss doctrine but addressed the acceptance rule,6 see 734 N.E.2d at 1052, which has since been abandoned. See Peters v. Forster, 804 N.E.2d 736, 743 (Ind.2004) (abandoning the acceptance rule in favor of traditional principles of negligence). Thus, I do not believe that U-Haul or Hiatt require the application of the economic loss doctrine.
However, I do find Hiatt instructive in its above-cited language that "[in this state, the privity barrier has repeatedly collapsed if it is established that the architect's design was done so negligently as to create a condition imminently dangerous to third persons." Hiatt, 422 N.E.2d at 740. Here, the Library designated evidence that "the Parking Garage may have been at serious risk of structural failure if construction were allowed to continue." Appellant's Appendix at 929. The Library also designated evidence that it had "significant concerns over the structural integrity of the Parking Garage and the safety of continued construction on the Project." Id. at 911. Given this evidence, I conclude that there is at least a question of fact as to whether TTE created a condition imminently dangerous to third persons. However, CCL's minor part in the process did not create a condition imminently dangerous to third persons. As the majority noted, at no time did CCL perform engineering work on the project and because of its very limited role, I would affirm the trial court's grant of summary judgment to CCL.
TTE is a design professional and structural engineering firm which potentially created a condition imminently dangerous to third persons. TTE owed a duty to the Library to make sure that its design was sound and would adequately support the parking garage and building. This duty did not arise in contract and precludes the application of the economic loss doctrine. See Webb v. Jarvis, 575 N.E.2d 992, 996 *819(Ind.1991) (addressing a negligence claim against a doctor, a professional, and holding that the imposition of a duty should not be dependent upon the nature of the damages, le., whether the damages are personal injury or economic, which flow as a result of its breach); Runde v. Vigus Realty, Inc., 617 N.E.2d 572, 575 (Ind.Ct.App.1993) (holding that the economic loss doctrine did not apply to the plaintiffs' claim for negligence which was based upon the alleged negligent performance of a duty undertaken by a gratuitous agent); A.C. Excavating v. Yacht Club II Homeowners Ass'n, Inc., 114 P.3d 862, 865 (Colo.2005) (concluding that the economic loss doctrine has no application because the plaintiff's negligence claim was based on a recognized independent duty of care); Eastern Steel Constructors, Inc. v. City of Salem, 209 W.Va. 392, 549 S.E.2d 266, 275 (2001) (holding that a design professional has a duty of care to a contractor in the absence of privity and that the contractor may recover purely economic damages in an action alleging professional negligence on the part of the design professional); Moransais v. Heathman, 744 So.2d 973, 983-984 (Fla.1999) (holding that the economic loss rule does not bar a cause of action against a professional engineer for his or her negligence even though the damages are purely economic), reh'g denied; Tommy L. Griffin Plumbing & Heating Co. v. Jordan; Jones & Goulding, Inc., 463 S.E.2d 85, 89 (8.C.1995) (holding that an engineer owed a duty to the contractor not to negligently design or negligently supervise the project and that the economic loss doctrine did not prohibit the plaintiff from maintaining a suit in tort for purely economic losses).
The economic loss doctrine is based upon the distinction between contract and tort claims. Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933, 938 (Ind.Ct.App.1996) (relying upon Martin Rispens & Son v. Holl Farms, Inc., 621 N.E.2d 1078 (Ind.1993), reh'g denied, abrogated in part on other grounds by Hyundai Motor America, Inc. v. Goodin, 822 N.E.2d 947 (Ind.2005)). This court has held that "[the theory of negligence protects interests related to safety or freedom from physical harm." Jordan v. Talaga, 532 N.E.2d 1174, 1181 (Ind.Ct.App.1989), trams. denied. The Library designated evidence that "the Parking Garage may have been at serious risk of structural failure if construction were allowed to continue." Appellant's Appendix at 929. The Library also designated evidence that it had "significant concerns over the structural integrity of the Parking Garage and the safety of continued construction on the Project." Id. at 911.
The majority relies upon 2314 Lincoln Park West Condominium Ass'n v. Mann, Gin, Ebel & Frazier, Ltd., 186 Ill.2d 302, 144 Ill.Dec. 227, 555 N.E.2d 346 (1990). In that case, the court stressed that the claim at issue concerned the "quality, rather than the safety, of the building and thus [was] a matter more appropriately resolved under contract law." Id. Here, the Library has raised issues about the safety of the parking garage. Thus, I find 2314 Lincoln Park distinguishable.
Because the theory of negligence protects interests related to safety and there is at least a question of fact regarding imminent danger as to TTE, summary judgment based on the economic loss doctrine was inappropriate.
For the foregoing reasons, I would reverse the trial court's grant of summary judgment in favor of TTE and affirm the summary judgment in favor of CCL.
. The acceptance rule provided that an independent contractor did not owe a duty of care to third parties after an owner accepted the work. U-Haul, 734 N.E.2d at 1052.