March 29, 2016
If you are engaged in construction either as a general contractor or subcontractor and enter a contract to do work, the contract is going to provide that certain plans and specifications are to be followed. These plans and specifications are usually referred to as the “Contract Documents” along with other documents such as general conditions, supplementary general conditions, addenda etc. The plans and specifications are usually prepared by a design professional such as an architect or engineer.
Let’s assume you proceed to do your work and follow the plans and specifications but the installation fails. The owner asserts a claim against you as the general contractor or if you are a subcontractor you are brought into the dispute by the general after he is sued by the owner. What is your liability?
As a contractor you have two obligations under your contract. First you have to follow the plans and specifications and perform your work in strict accordance with them. In addition you have an obligation to perform the work you do in a good and workmanlike manner. If you breach either of these two duties doing so can give rise to a cause of action against you. In addition you have no right to deviate from the plans and specifications unless a deviation was mutually agreed upon.
In an Appellate Court decision in Georgetown High School District No 218 v Hardy certain allegations of a complaint were held not to state a cause of action and others were held to properly assert liability. The School District alleged that the general contractor did not build an addition to withstand certain wind pressures and also that the roof could not withstand outward pressure of 15 lbs. per square foot. The Appellate Court held that there was nothing in the plans and specifications to require the general to build the addition to withstand any given wind pressures. Accordingly these allegations did not state a cause of action.
The School District also alleged that the roof had not been built correctly because certain specified steel or iron bolts were not used to resist the vertical uplift of the roof and the roof anchorage provided on the roof trusses was not of sufficient strength nor properly fastened. These allegations were held to state a cause of action because they indicated the plans and specifications were not followed and the work was not done in a good and workmanlike manner.
The above addresses a contractor’s or subcontractor’s liability to the party with whom you contract. What about a situation where a third party is injured and a cause of action is brought for what is alleged to be faulty construction. Let me give you an example of a case in which I am currently involved.
I represent a contractor that did a road improvement project for a municipality which included new sidewalks in a portion of a residential subdivision. My client subcontracted out the sidewalk phase of the job. The entire project was completed in December of 2001. No punchlists were issued regarding the sidewalks and the sidewalk subs retention was released by the Village one year after the work was completed. In addition final payment to my client was not made until October of 2003. No complaints were ever received regarding the sidewalks.
At an unknown date but certainly at least after December of 2002 and most likely after October of 2003 when my client received final payment a portion of a sidewalk in front of a house settled and a deviation between the sidewalk and an existing driveway occurred. In July of 2008 almost seven years after the job was completed a bicyclist ran over the deviation, fell off his bicycle and was injured. A lawsuit was filed naming the municipality, the design engineer, my client and the sidewalk subcontractor as defendants.
I have taken the position that my client is not liable because the plans and specifications for the job were followed and the work was done in a good and workmanlike manner. The facts that I am relying upon to support this position are that no punchlists were issued regarding the sidewalks, the subs retention was paid out a year after the job was completed without asking for any repairs and my client’s final payment was not made until almost two years after the job was completed, again without any complaints regarding any of the sidewalks that were installed. I have taken the position that my client is not a guarantor of the sidewalk at issue nor did it have an obligation to maintain the sidewalk once it was constructed in accordance with the plans and specifications for the job.
The law in Illinois supports the position I am taking. A contractor in the position of my client owes no duty to third persons i.e. the bicyclist to judge the adequacy of the plans and specifications which the contractor has merely contracted to follow. Accordingly, if the contractor does the work in accordance with the plans and specifications, the contractor is justified in relying upon their adequacy. The only exception to this rule of law is where the plans and specifications are so obviously dangerous that no competent contractor would follow them. Therefore, unless the plans and specifications are obviously dangerous a contractor cannot be held liable for following them as he has contracted to do.
In the case that I am involved with the injured bicyclist is not making any claim that the plans and specifications were so obviously dangerous that neither my client nor its subcontractor should have followed them. Both myself and the attorney for the subcontractor have filed motions for summary judgment requesting that our clients be held not liable for the plaintiff’s injuries. I’ll let you know how it turns out.