CACI 4511 Affirmative Defense—Contractor Followed Plans and Specifications

California Civil Jury Instructions CACI

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/nonbinary pronoun/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.

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 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)
Miller & Starr, California Real Estate 4th, §§ 27:99, 29:3 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 1:79 (Thomson Reuters)
Bruner & O’Connor on Construction Law, § 9:83 (Thomson Reuters)
Gibbs & Hunt, California Construction Law (Aspen Pub. 16th ed. 1999) Ch. 5, Breach of Contract by Contractor, § 5.01