California Civil Jury Instructions (CACI) (2017)

4500. Breach of Implied Warranty of Correctness of Plans and Specifications—Essential Factual Elements

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4500.Breach of Implied Warranty of Correctness of Plans and
Specifications—Essential Factual Elements
[Name of plaintiff]claims that [name of defendant]provided plans and
specifications for the [project/describe construction project, e.g., kitchen
remodeling]that were not correct. To establish this claim, [name of
plaintiff]must prove all of the following:
1. That [name of defendant]provided [name of plaintiff]with plans
and specifications for [name of defendant]’s [short name for
project, e.g., remodeling]project;
2. That [name of plaintiff]was required to follow the plans and
specifications provided by [name of defendant]in [bidding on/
[and] constructing]the [e.g., remodeling]project;
3. That [name of plaintiff]reasonably relied on the plans and
specifications for the [e.g., remodeling]project;
4. That the plans and/or specifications provided by [name of
defendant]were not correct; and
5. That [name of plaintiff]was harmed because the plans or
specifications were not correct.
New December 2010; Revised June 2011
Directions for Use
This instruction should be given when a contractor makes a claim for breach of the
implied warranty of correctness on the grounds that the plans and specifications
provided by the owner for its construction project were not correct. Also give
CACI No. 303, Breach of Contract—Essential Factual Elements, for other
contested elements of a breach-of-contract claim.
The word “project” may be used if the meaning will be clear to the jury.
Alternatively, describe the project in the first paragraph, and then select a shorter
term for use thereafter.
This implied warranty also applies to a general contractor who is responsible for
the correctness of plans and specifications that are provided to subcontractors. (See
Healy v. Brewster (1967) 251 Cal.App.2d 541, 550 [59 Cal.Rptr. 752].)
An implied-warranty claim can arise when the contractor is required to rely on the
owner’s plans and specifications in preparing a fixed price bid for a project. A
claim can also arise when the contractor must follow the owner’s plans and
specifications and, as a result, encounters difficulty in constructing the project. In
either case, the contractor may assert a claim for breach of the implied warranty if
the contractor is damaged by incorrect plans or specifications.
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A breach of the implied warranty can also be asserted as an affirmative defense to
an owner’s claim for nonperformance (see CACI No. 4511, Affırmative
Defense—Contractor Followed Plans and Specifications) if the contractor’s alleged
breach was caused by the owner’s incorrect plans and specifications.
The implied warranty applies in particular to plans and specifications provided by
public owners, who are required by statute to prepare accurate and complete plans
and specification for public works projects. (See Public Contract Code, §§ 1104,
10120.) It can also apply to private construction projects if the owner requires the
contractor to follow plans and specifications that turn out to be incorrect. (See, e.g.,
Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396,
404 [55 Cal.Rptr. 1, 420 P.2d 713].)
An owner’s obligation to provide correct plans and specifications cannot be
disclaimed by general language requiring the contractor to examine the plans and
specifications for errors and omissions. (See Warner Constr. Corp. v. L.A. (1970) 2
Cal.3d 285, 292 [85 Cal.Rptr. 444, 466 P.2d 996].)
Sources and Authority
• Architectural or Engineering Plans and Specifications on Public Works Projects.
Public Contract Code section 1104 (applicable to state agencies).
• Plans and Specifications on State Agency Projects. Public Contract Code section
10120 (applicable to state agencies).
• “[I]f the contractor is bound to build according to plans and specifications
prepared by the owner, the contractor will not be responsible for the
consequences of defects in the plans and specifications. This responsibility of
the owner is not overcome by the usual clauses requiring builders to visit the
site, to check the plans, and to inform themselves of the requirements of the
work . . . . (United States v. Spearin (1918) 248 U.S. 132, 136 [39 S.Ct. 59,
63 L.Ed. 166], internal citations omitted.)
• “A contractor of public works who, acting reasonably, is misled by incorrect
plans and specifications issued by the public authorities as the basis for bids and
who, as a result, submits a bid which is lower than he would have otherwise
made may recover in a contract action for extra work or expenses necessitated
by the conditions being other than as represented. This rule is mainly based on
the theory that the furnishing of misleading plans and specifications by the
public body constitutes a breach of an implied warranty of their correctness.
The fact that a breach is fraudulent does not make the rule inapplicable.”
(Souza & McCue Constr. Co. v. Superior Court of San Benito County (1962) 57
Cal.2d 508, 510–511 [20 Cal.Rptr. 634, 370 P.2d 338], internal citations
omitted.)
• “We have long recognized that ‘[a] contractor of public works who, acting
reasonably, is misled by incorrect plans and specifications issued by the public
authorities as the basis for bids and who, as a result, submits a bid which is
lower than he would have otherwise made may recover in a contract action for
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extra work or expenses necessitated by the conditions being other than as
represented.’ ” (Los Angeles Unified School District v. Great American Ins. Co.
(2010) 49 Cal.4th 739, 744 [112 Cal.Rptr.3d 230, 234 P.3d 490].)
• “The responsibility of a governmental agency for positive representations it is
deemed to have made through defective plans and specifications ‘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 . . . .’ ” (E. H.
Morrill Co. v. State (1967) 65 Cal.2d 787, 792–793 [56 Cal.Rptr. 479, 423 P.2d
551], internal citations omitted.)
• “If a contractor makes a misinformed bid because a public entity issued
incorrect plans and specifications, precedent establishes that the contractor can
sue for breach of the implied warranty that the plans and specifications are
correct. The contractor may recover ‘for extra work or expenses necessitated by
the conditions being other than as represented.’ ” (Dillingham-Ray Wilson v.
City of Los Angeles (2010) 182 Cal.App.4th 1396, 1401, fn. 5 [106 Cal.Rptr.3d
691].)
• “Courts have recognized a cause of action in contract against a public entity
based upon the theory that ‘the furnishing of misleading plans and specifications
by the public body constitutes a breach of implied warranty of their
correctness.’ ” (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007)
155 Cal.App.4th 525, 551 [66 Cal.Rptr.3d 175].)
• “Second, [private owner] breached its contract by providing [contractor] with
plans that were both erroneous and extremely late in issuance. Although
construction started on May 1, 1976, lengthy drawing reviews became necessary
and final drawings were still being furnished as late as July through September
1977. The furnishing of misleading plans and specifications by an owner is a
breach of an implied warranty of their correctness.” (C. Norman Peterson Co. v.
Container Corp. of Am. (1985) 172 Cal.App.3d 628, 643 [218 Cal.Rptr. 592],
internal citations omitted.)
• “The trial court . . . read the section 158 disclaimer to the jury, but instructed
them that ‘if a public agency makes a positive and material representation as to
a condition presumably within the knowledge of the agency and upon which the
plaintiff had a right to rely, the agency is deemed to have warranted such facts
despite a general provision requiring an on-site inspection by the contractor.’ In
submitting the issue of the effect of the section 158 disclaimer to the jury, and
its instructions to the jury, the trial court complied with our decision in Morrill,
and the verdict must be taken as resolving that issue against defendant.”
(Warner Constr. Corp.,supra, 2 Cal.3d at p. 292, fn. 2].)
• “Since the plans and specifications were prepared by the owners’ architect and
not by the subcontractor, and since the subcontractor undertook to do the work
in accordance with his specific proposal, we cannot reasonably conclude that
the subcontractor assumed responsibility for the adequacy of the plans and
specifications . . . . The language upon which the plaintiff relies constituted a
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statement of the purpose sought to be achieved by means of the owners’ plans
and specifications rather than an undertaking on the part of the subcontractor of
responsibility for the adequacy of such plans and specifications as the design of
a system capable of producing the desired result.” (Kurland v. United Pacific
Ins. Co. (1967) 251 Cal.App.2d 112, 117 [59 Cal.Rptr. 258].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 998
1California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, §§ 6.73–6.76
5 Stein, Construction Law, Ch. 18, Warranties, ¶ 18.02 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract
Remedies, § 440.14 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§ 104.24 (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 481, Public Works, § 481.311
(Matthew Bender)
10 Miller & Starr, California Real Estate (3d ed. 2008) Ch. 27, Construction Law
and Contracting, §§ 27:63–27:64 (Thomson Reuters West)
Acret, California Construction Law Manual (6th ed. 2005) Ch. 7, Public Contracts,
§ 7:78 (Thomson Reuters West)
3 Bruner & O’Connor on Construction Law, Ch. 9, Warranties, §§ 9:78, 9:84
(Thomson Reuters)
Gibbs & Hunt, California Construction Law (Aspen Pub. 16th ed. 1999) Ch. 4,
Breach of Contract by Owner, §§ 4.06, 4.07
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 13,
Everything You Ever Wanted to Know About Extra Work and the Changes Clause,
pp. 99–100
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