Is There a Doctrine in the House?

• Author: By Marion T. Hack and G. William Quatman
• Pages: 5-14

THE CONSTRUCTION LAWYER 5Summer 2020

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.”

2

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.”

3

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.

6

When

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

DESIGN AND CONSTRUCTION

Marion T. Hack G. William Quatman