dissenting.
I do not agree with the court’s conclusion that the trial court erred in denying ESAL’s motion for a new trial. In presenting its case, the City argued that ESAL’s poor engineering practice and episodic work pattern were either a breach of contract or professional malpractice, or both. A special verdict was not requested. The jury returned a general verdict awarding each party a specific amount in damages. It is unclear whether the jury determined that ESAL breached its contract with the City, negligently performed the contract, or both. We must affirm the superior court judgment if there is sufficient evidence to sustain the verdict based on either theory.
I believe the City presented sufficient expert testimony to enable the jury to infer reasonably that ESAL’s performance of the contract did not meet the community standard of competent engineering practice and that its episodic work pattern and' inadequate designs proximately caused the City’s injury. The City’s engineering expert testified that in a locality such as Seward, a small city without its own staff of engineers, a design professional1 has a duty to act as the city’s engineering staff. In other words, the design professional has a duty to protect the city’s needs and interests, to come forward with recommendations for a system that will protect the city in the future, and to represent the city’s interests in an unbiased manner before state and federal agencies involved in the project.
The expert testified that given the nature of the work to be performed, the project should have been completed and put out to bid in 1974. Instead, ESAL’s work was only thirty to fifty percent complete when the contract was terminated in May 1974. Further, ESAL failed to use good engineering judgment and failed to represent the City’s interests in an unbiased manner before government agencies when it persistently supported the use of residential water meters, a totally unacceptable and impractical solution for the City’s winter water problems.2
The City’s expert witnesses also testified that ESAL’s designs, even in their incomplete stage, did not meet the standards of the community in many respects, including (1) the failure to consider street grade in the designs for water mains, (2) the failure to include profusions for the flushing of dead end lines, (3) the inadequate number and placement of fire hydrants, (4) inadequate drawings for the construction of a well and a reservoir, (5) the design of a water main network that produced an inadequate fire flow and did not meet the needs of the community, (6) the failure to address the problem of water hammer, and (7) the failure to address concerns that were set out in a 1961 study of the City’s water *1233system. .ESAL’s design was not simply incomplete. It was inadequate for the intended purpose.
Furthermore, the court virtually ignores the City’s breach of contract claim and the comprehensive instructions given in connection therewith. Instead, it focuses on perceived inadequacies in the City’s negligence claim. Failing to consider the breach of contract delay claim improperly overlooks admitted errors and omissions and reasonable inferences that a jury is entitled to draw therefrom.
I believe there is an evidentiary basis for the jury’s verdict. We must view the evidence in the light most favorable to the nonmoving party. Sloan v. Atlantic Richfield Co., 541 P.2d 717, 724 (Alaska 1975). If there is an evidentiary basis for the jury’s verdict it would be an abuse of discretion for the trial court to grant a new trial based on the sufficiency of the evidence. Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964). Accordingly, I would affirm the superior court judgment.
. The term “design professional” is an inclusive term used to describe architects, engineers, and surveyors, who are concerned with the planning, design, and construction of structures and facilities. The practice of design engineering is akin to the practice of architecture and many of the points raised in architectural malpractice cases are applicable to malpractice claims against design engineers. See J. Acret, Architects and Engineers § 1.1, at 3 (1977); 19 Am. Jur.Trials, Architectural Malpractice Litigation § 1, at 238 (1971).
. In an internal ESAL Field Inspection Report, . ESAL opined in part that:
The people of Seward and the City Council will resist any attempt at correcting the problem by metering only for they feel this is not the base problem. We should consider more emphasis on main line correction with meters as a secondary consideration (Management Tool).... At this time the Council will not O.K. the meters so we need a more educational effort. Right or wrong the City of Seward is taking a firm stand.
I feel we must be patient and firm up the E.P.A. and State positions before we try to push through any decision on the part of the City Council.
It is clear to me that ESAL was going to attempt to push through water meters, regardless of Seward’s adamant rejection of the idea. ESAL was not representing Seward’s interests in an unbiased manner. Ultimately, meters were not used.