Author Archives: Melissa Dewey Brumback

Design Error and the Spearin Doctrine (Law note)

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engineering plansDesign 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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Photo “pipes” by moonlight on celluloid via Flickr via Attribution-Noncommercial-ShareAlike 3.0 License.

Tuesday Tip | Tax incentives for Green projects

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green escalatorInterested in green building but skeptical about how it will increase your costs?  Before ruling out the concept, don’t forget to consider the tax incentives for green building.  Between the Business Energy Investment Tax Credit, federal cash grants for energy projects, North Carolina incentives for renewable energy property, and NC’s Green Building Incentive, there are ample opportunities to make “going green” a more appealing choice on your next building project.

For a look at some of the tax incentives available, check out Getting Green for Going Green- Tax incentives for energy-efficient projects.   [Update- link no longer working as of 11/22/2010]

You can also explore the database of North Carolina incentives for renewables and efficiency.  For projects outside of North Carolina, search the national database for tax incentives for going green.

If you are a homeowner interested in energy efficiency, you too may be able to get in on the green movement.  The Home Star legislation being considered by Congress, if it passes, will provide tax credits for making energy improvements to your house.

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Photo “the green ascent” by vsz via Flickr via Attribution-Noncommercial-Share Alike License.

 

 

The Architect’s and Engineer’s “Standard of Care” (Law note)

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drawing architectural plans

Architects and engineers are required to meet the appropriate standard of care for their work on a construction project.   Such a simple phrase is actually a very loaded statement.  What, exactly, is the “standard of care” that the design professional is required to meet?  This is one of the “terms of art” that lawyers love and everyone else tends to hate.

Basically, the “standard of care” is a shorthand description that states the designer owes a duty to perform reasonably well on the project.  How is “reasonably well” defined?  It is not perfection.  It is, however, the showing of “reasonable care” and performing the “level of skill and diligence those in engaged in the same profession would ordinarily exercise under similar circumstances.”  Again, what?  If you are an architect practicing in, for example, Raleigh, you will be presumed to:

1.  possess the required degree of learning, skills, and experience that is ordinarily possessed by similarly situated professionals in the community (that is, perform as well as other architects practicing in the Raleigh area);

2. use reasonable and ordinary care and diligence in the exercise of your skill to accomplish your professional tasks; and

3. use your best good professional judgment in performing your professional tasks.

Notice that nowhere did I say that the architect’s plans had to be perfect.  However, the plans do need to meet a “typical” standard.  They must meet the applicable Codes.  They must generally be sound.  But they do not have to be perfect.  (Question: Is there ever a perfect set of plans?).

Courts in North Carolina have spent a lot of time, and a lot of ink, discussing the deceptively simple concept of “standard of care,” but essentially this is how it is defined.  If you want to read caselaw discussing the standard, a good case is RCDI Const. Inc. v. Spaceplan/Architecture, Planning, & Interiors, PA., 148 F. Supp. 2d 607 (W.D.N.C. 2001).

Note for Contractors & Subcontractors

If you are not a licensed professional, are you off the hook?  No.  But your duties fall under the “implied duty of workmanship“.  Essentially, you have a duty to make sure your work is sufficiently free from defects such that it meets the requirements of the Contract documents.

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Photo Drawing up the plans (Doors & Windows) by Sailing “Footprints: Real to Reel” (Ronn ashore) via Flickr and made available via an Attribution-Noncommercial-Share Alike 2.0 license.

 

Second Primary Election Tomorrow in NC

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If you live in North Carolina, please review this post to see if you have a second primary election tomorrow and, if so, please remember to vote.  Polls are open from 6:30 a.m. to 7:30 p.m.

The following second-primary races will be held:

Democratic:

 

 

  • US Senate–Elaine Marshall v. Cal Cunningham

 

 

  • NC State Senate District 21— Eric L. Mansfield v. Lula Crenshaw

Republican:

 

 

 

  • US House of Representatives District 8– Harold Johnson v. Tim D’Annunzio

 

 

  • US House of Representatives District 12– Greg Dority v. Scott Cumbie

 

 

  • US House of Represeventatives District 13– William (Bill) Randall v. Bernie Reeves

There are also at least a few municipal/local run-off elections.  For a sample ballot for your voting district, head to the NC Board of Elections website.