October 2021 – Law and Civil Engineering
THE LAW AND CIVIL ENGINEERING – OCTOBER 2021 NEWSLETTER
Follow the Plans and Specifications
by Eugene Bass
A water district sued a contractor who built a new highway in Marin County under a contract with Cal Trans. The new highway was built to replace an old highway, and roughly paralleled it. Where the new highway crossed a swamp, mud was twenty to sixty feet deep. The mud area between the old and new highways in some places was only thirty feet wide. The method of construction called for by the plans and specifications was to pile sufficient rock and dirt on the mud to cause it to settle through the mud to solid ground thus creating a solid bed for the new highway. The result of following this method of construction was to displace the mud outward from the new roadway and toward the existing highway. The displacement of mud against the old highway caused it to move in some places as much as ten feet.
The existing highway contained various utilities including water, gas and sewer lines. The displacement due to the surcharge caused the water district’s pipe line to buckle and break resulting in a lawsuit against the contractor by the water district.
At the trial of the case, a judgment was rendered against the contractor, finding that the damages for injury to the water district’s pipe line was caused by contractor’s negligence in constructing the new highway. The contractor appealed the case and the appellate court reversed the lower court decision, finding that the contractor was not negligent.
On appeal, it was shown that the contractor, as well as the state engineers, knew of the existence of the water pipe line. The contract between the state and contractor expressly called the attention of the contractor to the fact that certain water, gas and sewer lines were buried within the limits of the work to be done, and provided that: “The contractor shall take every precaution to protect and preserve such lines from injury or damage during construction operations.” In addition, the evidence at trial showed that the work of the contractor was planned by the state engineers, and that the actual construction work was supervised and directed by the state engineers. The work done conformed in every detail to the plans and specifications furnished by the state, and everything done by the contractor was approved by the state engineers. It was also shown that prior to the commencement of construction the state informed the water district by letter of the proposed construction and warned it to protect its property.
The appellate court noted that the trial court found, that the contractor had followed the plans and specifications exactly, and constructed the fill as directed by the state engineer, and that the water district was informed of the proposed construction and was furnished plans for the work. Further, the trial court found, that the water district’s engineer knew of the day by day progress of the work and did not voice any objections. The contractor’s witnesses had testified that the method of construction used was proper and there was no other testimony against that opinion. The appellate court thus concluded that it was obvious that in performing the work exactly in accordance with the plans and specifications, and under the supervision of the state engineer, the contractor was not guilty of negligence in the case and overturned the lower court judgment.
The case serves as a direct example of the necessity of following the plans and specifications. With the caveat, however, that if the plans and specifications require something that the contractor believes will cause problems, the contractor should immediately call these concerns to the attention of the appropriate project representative.
This article is intended only to provide general information regarding legal issues. It is not to be relied upon for legal advice. Contact your attorney for advise and guidance on general and specific legal issues.