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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