Consider this scenario: you have been hired to install a roof based on the specifications of a design professional. You follow those specifications to a tee and complete the job on time and on budget. However, months later, the roof collapses after a severe storm and it is discovered that the specifications were not compliant with ASCE 7. Are you liable? Maybe.
ASCE 7, Minimum Design Loads and Associated Criteria for Buildings and Other Structures, is integral to U.S. building codes. Produced by the American Society of Civil Engineers (ASCE), it outlines the means for determining loads for structural design. Factors considered include flood, tsunami, rain, snow, ice, soil and wind conditions, among other things.
Building codes such as ASCE 7 were created to ensure that construction projects and installations are secure and can safely be used for their intended purposes. These codes are intended to provide accepted practices and minimum standards for every stage of a project. The ASCE 7 guidelines are updated every few years, with ASCE 7-22 recently superseding ASCE 7-16.
It is essential for architects, engineers and building code officials to follow these load requirements. It is also critical for contractors to know the guidelines and implement them in their work.
Generally, on construction projects, contractors provide an owner with a workmanship warranty.
In addition, a contractor may supply the owner with manufacturer or material warranties after a project is completed. Although these types of warranties are provided by the contractor to the owner, the owner also provides certain warranties to the contractor during the course of construction. One such warranty is the implied warranty of constructability, also known as the implied warranty of fitness and plans or the Spearin Doctrine.
Unless the contractor is engaged in a design build project, the contractor is normally provided with a set of plans, specifications and design documents from the owner. The design documents may either be generated by the owner or at the owner’s request by an architect, engineer or other design professional. The Spearin Doctrine provides that the contractor is entitled to rely on the design documents provided by the owner. The contractor is bound to build the project according to the plans and specifications prepared by the owner or at the owner’s request. Under these circumstances, the contractor is not responsible for the consequences of design defects.
An owner implicitly warrants that if a contractor complies with the plans and specifications, which later prove to be defective, the contractor will not be liable to the owner for the loss or damage, which results solely from design deficiencies. In U.S. v. Spearin, 248 US 132 (1918), the United States Supreme Court articulated the implied warranty of constructability. In that case, a utility contractor was under contract with the U.S. government to relocate a six-foot storm sewer and build a dock. The plans and specifications outlined the materials, dimensions and location of the sewer. There was an implied warranty that the sewer would perform adequately if the plans were followed. The contractor adhered to the plans. A year later, after a combination of heavy rain and a high tide, the sewer backed up and broke part of the dock. The government insisted that Spearin was liable for the issue and should be responsible for making the repairs. Spearin refused, stating that the sewer should be redesigned. The government terminated Spearin, redesigned the sewer and hired someone else to make the repairs. Spearin sued. Ultimately, the Supreme Court ruled that the government had breached the implied warranty of adequate plans and held that Spearin was not responsible for the sewer’s poor performance. Today, the Spearin doctrine is widely accepted in U.S. courts and can help protect contractors’ interests.
Contractual provisions in AIA documents and other construction contracts attempt to cut against the Spearin Doctrine and courts may be less willing to look the other way when it comes to blatant design deficiencies. Therefore, the contractor should thoroughly examine all design documents prior to construction to determine their feasibility. During construction, if a design issue arises, the contractor should notify the architect or engineer and owner’s representative of any design defect immediately. Many construction contracts allow for the request for information process (RFI) which allows contractors to request information and clarification on design-related issues from the architect or engineer of record. We recommend confirming with the design professional in advance that the plans and specs comply with ASCE 7 in writing.
Managing your risk and understanding liability can seem incredibly complex. You are expected to follow the plans and specifications provided, but you are also responsible for building structures that will remain intact for decades to come. Therefore, it is vital that you are aware of the applicable codes and standards, abide by them and maintain clear communications with your customers.
In addition, you must take the time to read and understand every word of the contracts you sign. Disclaim liability for design and make sure to push the burden of compliance on design professionals when possible.
FRM
The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney is a partner and Construction Practice Group Leader at the law firm of Adams and Reese LLP and FRSA General Counsel. You can contact him at 813-227-5501 or trent.cotney@arlaw.com.
Free Legal Helpline for FRSA Members
Adams and Reese LLP is a full-service law firm dedicated to serving the roofing industry. FRSA members can contact Trent Cotney to discuss and identify legal issues and to ask general questions through access to specialized counsel. They offer free advice (up to 15 minutes) for members. If additional legal work is required, members will receive discounted rates. This is a pro bono benefit provided to FRSA members only. Contact Trent at 813-227-5501.
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