California Civil Jury Instructions (CACI) (2017)

4511. Affirmative Defense—Contractor Followed Plans and Specifications

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4511.Affirmative Defense—Contractor Followed Plans and
Specifications
[Name of plaintiff] claims that [name of defendant] failed to [perform the
work for the [project/describe construction project, e.g., kitchen
remodeling] competently/ [or] use the proper materials for the [project/
e.g., kitchen remodeling]]. [Name of defendant] claims that [he/she/it]
followed the plans and specifications and that [specify alleged defect in
the work or materials] was because of the plans and specifications that
[name of plaintiff] provided to [name of defendant] for the project.
To succeed on this defense, [name of defendant] must prove all the
following:
1. That [name of plaintiff] provided [name of defendant] with the
plans and specifications for the project;
2. That [name of plaintiff] required [name of defendant] to follow the
plans and specifications in constructing the project;
3. That [name of defendant] substantially complied with the plans
and specifications that [name of plaintiff] provided for the
project; and
4. That [specify alleged defect in the work and/or deficiency in
performance] was because of [name of defendant]’s use of the
plans and specifications.
New December 2010
Directions for Use
This instruction is a contractor’s affirmative defense to the owner’s claims that
there is a defect in the work or deficiency in the contractor’s performance. (See
CACI No. 4510, Breach of Implied Covenant to Perform Work in a Good and
Competent Manner—Essential Factual Elements.) The contractor asserts that any
alleged defect or deficient performance was caused by following the plans and
specifications that were provided by the owner because the plans and specifications
were inaccurate or incomplete. This instruction may be modified for use in the
contractor’s action for compensation from the owner if the owner alleges poor
quality work as a defense to payment.
Sources and Authority
• “[T]he authorities hold that where the plans and specifications were prepared by
the owner’s architect and not by the subcontractor, and since the subcontractor
undertook to do the work in accordance with the specific proposal, it cannot
reasonably be concluded that the subcontractor assumed responsibility for the
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adequacy of the plans and specifications to meet the purpose of the owner, and
where the contractor faithfully performs the work as specified, there cannot be
an implied warranty that the contractor will supplement the inadequacy of the
plans.” (Sunbeam Construction Co. v. Fisci (1969) 2 Cal.App.3d 181, 184–185
[82 Cal.Rptr. 446].)
• “There is no basis for an implied warranty of fitness of the installation since the
work was done in accordance with the plans and specifications supplied by the
owner. . . . ‘In other words, as to the refrigerating plant, defendants got
precisely what they contracted for, and there was no implied warranty that the
machine would answer the particular purpose for which the buyers intended to
use it.’ ” (Corporation of Presiding Bishop of Church of Jesus Christ of Latter-
Day Saints v. Cavanaugh (1963) 217 Cal.App.2d 492, 508–509 [32 Cal.Rptr.
144].)
• “[T]he contractor’s responsibility for any completed portion of the work, so
done under the direction and to the satisfaction of the engineers, relieves him
from responsibility for such an accident as that which befell. . . .” (McConnell
v. Corona City Water Co. (1906) 149 Cal. 60, 63 [85 P. 929].)
Secondary Sources
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, §§ 5.97, 5.98
3 Stein, Construction Law, Ch. 11, Remedies and Damages, ¶ 11.02 (Matthew
Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.42, 104.254 (Matthew Bender)
10 Miller & Starr, California Real Estate (Thomson Reuters West 3d ed.) Ch. 27,
Construction Law and Contracting, § 27:99
11 Miller & Starr, California Real Estate (Thomson Reuters West 3d ed.) Ch. 29,
Defective Construction, § 29:3
Acret, California Construction Law Manual (Thomson Reuters West 6th ed. 2005)
Ch. 1, Contracts, § 1:79
3 Bruner & O’Connor on Construction Law (Thomson Reuters West 2002) Ch. 9,
Warranties, § 9:83
Gibbs & Hunt, California Construction Law (Aspen Pub. 16th ed. 1999) Ch. 5,
Breach of Contract by Contractor, § 5.01
4512–4519. Reserved for Future Use
CACI No. 4511 CONSTRUCTION LAW
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