Is There a Doctrine in the House?

AuthorBy Marion T. Hack and G. William Quatman
Published in The Construction Lawyer, Volume 40, Number 3 Summer2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Is There a Doctrine in the House?
By Marion T. Hack and G. William Quatman
Marion T. Hack is a partner at Troutman Pepper in
Los Angeles, California. G. William Quatman is general
counsel for Burns & McDonnell in Kansas City, Missouri.
First-year law students are taught the more famous doctrines,
such as the riparian rights doctrine, pure comparative fault
and contributory negligence doctrines, res judicata doctrine,
doctrine of stare decisis, and the unclean hands doctrine. But
there are so many more legal doctrines that our professors
never taught us. In fact, Black’s Law Dictionary lists nearly
500 separate legal doctrines that are part of the common law,
found in state and federal court cases and adopted widely
until they form a uniform principle of law that is applied to
similar cases. Often these doctrines’ names come from one
of the parties to the case, but the name can also describe
the essence of the doctrine itself.
While the body of case law on these doctrines inherently
arises from judicial case law, the doctrines nonetheless apply
to alternative dispute resolution (e.g., arbitrations) and are
regularly relied upon and utilized by parties and neutrals in
rendering decisions. It is important for construction practi-
tioners to have some familiarity with the most common of
these doctrines to spot key legal issues and avoid any traps.
This article reviews the ten doctrines that the authors believe
are the most commonly applied in design and construction
cases. The full breadth of each doctrine is not discussed
here for the sake of brevity, but this summary of the top
ten should provide the reader with a working knowledge
of the concepts.
The Spearin Doctrine
We begin with a legal doctrine that recently marked its 100th
birthday. In its landmark decision in 1918, the U.S. Supreme
Court ruled in favor of George B. Spearin, who contracted
with the U.S. government to build a dry dock at the Brook-
lyn Navy Yard for a xed price.1 The contract required
Spearin to relocate a 6-foot brick sewer line before con-
struction of the dry dock could begin. Spearin performed
that work pursuant to government-provided plans and speci-
cations as to the dimensions, material, and location of the
relocated sewer section. However, the relocated sewer line
cracked at several locations after a rainstorm, ooding the
dry dock excavation. This resulted in a dispute between the
parties over who was responsible for the cost arising from
the broken sewer line, including termination costs when the
contractor refused to continue without certain assurances.
Writing for the unanimous court, Justice Louis Brandeis
stated: “The general rules of law applicable to these facts are
well settled. Where one agrees to do, for a xed sum, a thing
possible to be performed, he will not be excused or become
entitled to additional compensation, because unforeseen
difculties are encountered.”
However, the court also held:
“But if the contractor is bound to build according to plans
and specications prepared by the owner, the contractor
will not be responsible for the consequences of defects in
the plans and specications.”
The Court went on to explain
that the government’s actions in furnishing the design con-
stituted an implied warranty; the Court said:
[T]he insertion of the articles prescribing the charac-
ter, dimensions and location of the sewer imported a
warranty that if the specications were complied with,
the sewer would be adequate. This implied warranty
is not overcome by the general clauses requiring the
contractor to examine the site, to check up the plans,
and to assume responsibility for the work until com-
pletion and acceptance.4
And thus was born the Spearin doctrine of implied war-
ranty of constructability. Despite its age, the doctrine is still
relevant today. At its core, a Spearin claim is one for breach
of contract.5 Spearin stands for the proposition that when
a governmental entity includes detailed specications in a
contract (e.g., a government-furnished design), it impliedly
warrants that (1) if the contractor follows those specica-
tions, the resultant product will not be defective or unsafe,
and (2) if the resultant product proves defective or unsafe,
the contractor will not be liable for the consequences.
the government breaches this warranty, the contractor can
recover damages for delay and extra work.
This is not simply a guarantee, however, that a partic-
ular level of care and competency was used to create the
plans, as in a case of a negligence claim against a design
professional. The Spearin warranty is much higher. Courts
recognize that the standard of care of a design professional
Marion T. Hack G. William Quatman

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