Defects By Design; Who is Liable for Bad Plans and Specs
Posted on Mon, Nov 07, 2011
Construction is fraught with countless risks, from weather conditions, labor strikes, material unavailability, subsurface conditions, and from inaccurate plans and specifications, among others. Each has the potential to delay the project, cause increased completion costs, and increase the likelihood of disputes, liens, or litigation. Problems stemming from inaccurate plans and specs can quickly become the problems of others beyond just the design professional itself.
It is undisputed that New York construction law imposes primary responsibility for plan and specification accuracy on the design professional itself. The design professional is required to use the degree of skill, knowledge, and judgment ordinarily used by other design professionals in the same geographic area.
However the issue becomes more complicated where an owner has its architect prepare plans and specifications, and provides them to its contractor. As between the owner and the contractor, it is the owner who bears the risk of any deficiencies in the architecturals. This allocation of risk, known as the Spearin Doctrine, stems from the 1918 United States Supreme Court matter of U.S. v. Spearin, 54 Ct. Cl. 187, 248 U.S. 132.[1]
In Spearin, the contractor was constructing a federal dry dock, with the plans and specifications provided by the owner. The plans failed to show a dam, which later failed and caused the dry dock to flood. The Court found that in issuing the plans, the owner extended an implied warranty to the contractor, warranting that the plans and specifications, if complied with, would be adequate for its intended purpose.[2]
Where a contractor has reason to believe that some error, oversight, or defect exists in the plans and specifications provided to it by the owner, the contractor should notify the owner promptly of these claims (preferably in writing). Where such a defect is not noticed by any party until after bidding, the plans would then arguably be defective under the Spearin Doctrine.
The contractor under New York construction law is charged only with constructing the project in conformance with the architecturals, and to point out to the owner any deficiencies in the provided architecturals that it discovers. This does not arise to the contractor having responsibility for any deficiencies it fails to discover.
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The author,
John Caravella Esq., is a construction attorney and formerly practicing project architect at
The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608–1356 or (516) 462-7051.
[1] Not all states follow the Spearin Doctrine,
[2] the Court also found that this warranty could not be avoided by requiring contractor to examine the site, plans, and specifications prior to entering the contract. As such, contractors can typically recover extra costs incurred to overcome design defects
This is a general information article and should not be construed as legal advice or a legal opinion. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.