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Where a town sued its general contractor (Penta Corporation) based on failure of its subontracted vendor/supplier’s equipment to perform as required by the project, the contractor was entitled to summary judgment because it did not design the equipment in question and it had no say in selecting the equipment – but instead purchased and installed what was required by the project plans and specifications contained in the bidding documents. Because the contractor had no design duties, it could’t, as a matter of law, be found to have breached any such duty.   Penta Corporation v. Town of Newport v. AECOM v. WesTech Engineering (New Hampshire Super 2018, April 2018).

The Town’s assertion that the contractor had vicarious liability in tort for the failure of the equipment of its subcontractor was also rejected because the contractor could only be liable for the acts and omissions of its subcontractor in a breach of contract action. Even if the subcontractor was negligent, the court stated the prime could not be held liable in tort for the sub’s acts because it was an independent subcontractor over who’s work the prime contractor did not control.

Finally, the Town failed to present expert testimony to establish design duties of the contractor and this likewise entitled the contractor to summary judgment.

This decision also deals with numerous other issues concerning AECOM and arises out of the same project that we discussed in this newsletter over a year ago concerning indemnification obligations. Each subpart of the decision contains so many good lessons learned that we will likely write a series of separate case notes to address each of those subheadings in the decision. Look for this in an upcoming issue of ConstructionRisk.com Report.

 

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. 20, No. 9 (Oct 2018).

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