- Owner is suing the contractor for damages caused by the movement of two precast concrete planks. The damage was caused because two planks were not grouted together. Assume that the evidence showed
- The drawings showed a 2 inch concrete topping over two 8” precast planks, placed horizontally, next to each other.
- No void is shown between the precast planks but they are clearly two separate planks as shown and in view of the lengths of each as contrasted with the length of the concrete topping.
- No mention is made in the specifications of the location of the planks and there are no instructions as to the point at which they meet.
Contractor builds exactly according to the plans and specifications and does not grout the planks together. Later the owner sues the contractor for damages related to the movement of the two planks. The contractor’s response is that he is not responsible for the damages and that the mistake was the engineer/designer’s. Discuss in detail. Further assume that there is an addendum in the contract which states: “Question (from the contractor): ‘Is there a void between the precast planks to be grouted?’ ” “Answer (from the owner): ‘No.’ ” Discuss in detail.
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I would argue that the owner has no reasonable cause to sue the contractor unless the plans, as drawn, were so clearly deficient that any competent contractor would have known that they should not have been followed. Even then, it would be hard for the owner to prevail in this case.
The reason that the contractor should not be liable is that he built exactly according to the plans. It is true that the plans did not explicitly say that the planks would not be grouted together. However, the plans also did not say that the planks would be grouted and the owner should have noticed that. Moreover, the presence of the addendum seems to be particularly damaging to the owner’s cause. The addendum shows that the contractor was trying to find out exactly what was wanted with respect to the planks and grouting. In the addendum, the owner clearly states that there will be no grouting. If the owner says this, it is hard to understand how they can then turn around and sue due to a lack of grouting.
It is barely possible that the contractor could be partially liable if the plans were so poorly made that any reasonable contractor would know that they were faulty. I do not know enough about construction standards to know if they were. The contractor has a duty to act with care and skill in fulfilling the contract. If the plans were so bad that no careful and skillful contractor would have followed them as drawn, the owner might have some cause to sue. However, the owner’s case would still be tenuous as the owner presumably approved the plans. In addition, the greater liability would lie with the engineer/designer who drew the plans.
For these reasons, I see no reason to think that the contractor should be held liable in this case.
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