Design Error. Two words that strike fear into the heart of any architect, engineer, or lawyer representing them. Today’s post discussion is to discuss the different obligations of each of the parties on a construction project relating to design errors.
As discussed last week, designers have an obligation to design in accordance with a reasonable standard of care. That does not mean that the plans and specifications are perfect, however.
While the contractor is not responsible for design errors, he does have a duty to report any design errors or omissions which he discovers during his review of the plans. If he discovers any design errors, he must report them to the owner. See, for example, AIA A201 3-2.2.
As we have also discussed, an owner also impliedly warrants the adequacy of the plans and specifications . This is sometimes known as the “Spearin Doctrine,” after the seminal Supreme Court case, US. v. Spearin, 248 U.S. 132 (1918). In Spearin, a contractor sought to recover from the government for the government’s failure to provide accurate plans reflecting the overflow issues which preexisted at the Brooklyn Navy Yard, The Court held:
[I]f the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be
responsible for the consequences of defects in the plans and specifications, (Citations omitted). This responsibility of the owner is
not overcome by the usual clauses requiring builders to visit the site, to check the plans, and to inform themselves of the requirements of the
work. The duty to check plans did not impose the obligation to pass upon their adequacy to accomplish the purpose in view.
Id. at 136-137. The Spearin Doctrine has been faithfully followed in the North Carolina courts. See, e.g., City of Charlotte v. Skidmore, Owings and Merrill, 103 N.C, App. 667, 407 S.E.2d 571 (1991); Burke Co Public School Bd of Education v Juno Construction Corp, 50 N.C App. 238, 273 S.E,2d 504 (1981).
One state court held, “[i]t is simply unfair to bar recovery to contractors who are mislead by inaccurate plans and submit bids lower than they might otherwise have submitted.” Battle Ridge Companies v. North Carolina Dept. of Transportation, 161 N.C. App. 156, 160, 587 S.E.2d 426 (2003), quoting Lowder v. Highway Comm., 26 N.C, App, 622, 638, 217 S.E.2d 682, 692, cert denied, 288 N.C. 393, 218 S.E.2d 467 (1975).
Obviously, the architect or engineer is the ultimate party responsible for design errors, but all parties play a role in identifying and minimizing the effect of such errors through prompt notification.
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Melissa,
I am a general contractor doing a fuel tank replacement project for our county. In the specifications there is a spec for a UL 142 tank, on the plans the spec references UL 2085 – a much more expensive tank. My subcontractor bid the UL 142 tank. The specifications state that the specs and plans are on the same level of precedence.
The county wants me to furnish the more expensive tank without compensation citing the clause that states the plans and specs are complementary and what is called for by one is binding as if called by all and the most stringent requirement will apply.
My position is the word “stringent” according to Webster means “rigidly controlled, enforced, strict, severe.” The two specifications are written by Underwriter’s Laboratory and precisely decribe each type of tank clearly and without ambiguity for the purpose of rigidly controlling the qualities of the product. Consequently the two specifications are equally stringent. Stringent does not mean more expensive or what the pre-bid intent of the owner.
Is this sound reasoning, does it fall under Spearin and is there another defense I should take?
Thanks,
Dave O’Hern
Miller O’Hern Construction
[email protected]
520-334-9939
Dave:
Very interesting situation. Sounds like the contract is not very well written. I will be using your post for a blog topic on Thursday (7/28/2011)- check back then.
Great blog Melissa…I have a house that was built 600 sq ft less than contracted- this was just verified by appraisal and builder says it is the architects fault. Which party would I pursue for damages and would either builder or architect have insurance? Thanks, Elizabeth (MBA ’83)
Hi Elizabeth! While I cannot give you any legal advice on the blog, as a general rule you start with whoever your contract was with, which I assume was the builder. Generally most construction professionals have insurance, but some, unfortunately, do not. You won’t know that for sure until you sue, unless they volunteer it.
If you would like to talk further and see if I can help you, drop me an email at mbrumback at rl-law dot com.