• The Contractor’s Emerging Exposure for Design Responsibility
  • July 6, 2017 | Author: Jennifer S. Lowndes
  • Law Firm: Jones Walker LLP - Atlanta Office
  • On a design-bid-build construction project, it is the owner who is often stuck between a rock and a hard place when defects emerge during the build. For starters, the owner has the difficult task of proving whether the problem is due to defective design or defective construction. Pursuing a claim against a design professional carries a host of problems for an owner. Not only must an owner pass the higher hurdle of proving professional negligence against architects or engineers, but architect/engineer contracts are tight on limitations of liability. The contractor, on the other hand, is usually protected by what is known as the Spearin doctrine; a century-old policy shielding the contractor from defective construction when the owner-provided plans and specifications are followed without deviation. The result of this liability gap for the owner has been an emphasis on contractual risk shifting to the contractor, especially in the area of design responsibilities where a contractor’s Spearin defense is on more precarious ground.