Where a contractor sought a request for clarification to the project architect concerning whether rebar was to be tied from the floor slab to the pile caps, the architect responded with a clarification, that ultimately became a change order, directing the slab rebar to be connected to the pile caps. This was not consistent with a recommendation that had been included in the geotechnical engineering report that was provided with the bidding documents. When the foundation failed, the building owner sued the contractor for breach of warranty and breach of contract. Contractor’s motion for summary judgment was granted, and affirmed on appeal, because contractor constructed the building in accordance with the plans and specifications as revised by the change order.   Of note, the court concluded that the contractor was not obligated to notify the architect in its request for clarification that the specification conflicted with the recommendation in the geotechnical report. Moreover, said the court, the contractual requirement that the contractor carefully study the specifications was not for the purpose of discovering errors, omissions or inconsistencies in the design information, and such review was only in its capacity as a contractor and not as a licensed design professional. Maines Paper & Food Service, Inc. v. The Pike Company, Inc., 26 NYS 3d 646 (2016).

The court quoted from the contract that provided that the contractor was “not … required to provide professional services that constitute the practice of architecture or engineering unless such services are specifically required” and that the contractor was “not … responsible for the adequacy of the performance and design criteria specified in the Contract Documents.”

What the court felt the project was trying to do here was to suggest that the contractor was obligated to act as design professional and challenge the directing in the change order. But that obligation was not contained in the contract. The contractor raised the issue, by a request for clarification, concerning tying the slab to the pile caps, and the owner and architect responded by directing how the work was to be done. The court concluded that “even if it was contrary to the recommendation set forth in the [geotechnical] report, it was not contrary to any contractual provision applicable to the [contractor].   Since the change order was approved by the architect and owner, there was no material question of fact at issue and court, therefore, determined that a trial was not necessary, but that the matter could be appropriately resolved on a summary judgment motion – with judgment granted to the contractor.

One other important issue discussed in this decision was the question of whether the project owner could sue the contractor for negligence in addition to breach of contract. The court concluded it could not. As stated by the court, “It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has be violated. This duty must spring from circumstances extraneous to, and not constituting elements of, the contract….” Since the owner did not allege that the contractor engaged in a negligent act or violated a legal duty distinct from the contract, there was no legal basis for a claim, or cause of action based on negligence.

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 18, No. 7 (December 2016).

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