Louisiana (LAGC) Fall 2002 – Russel W. Wray
Louisiana’s Design Sufficiency Law provides immunity to the contractor for defects in the work:
No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.
The rationale is that the contractor is not the guarantor of the plans and specifications drawn by another. Immunity results from proof of compliance alone rather than proof the plans and specifications contained a defect. Furthermore, the immunity is not waivable by contract.
However, complying with plans and specifications is not the full extent of the contractor¿s duty despite La. R.S. 9:2771. Our courts have interpreted 9:2771 so as not to relieve the contractor from the duty to use ordinary care and skill in his work, to refrain from creating hazardous conditions, or to warn of hazardous conditions that he discovers.
In Bunge Corporation v. GATX Corporation, plaintiff, the owner and operator of a grain storage tank alleged that the contractor, GATX, failed to warn that the storage tank could explode under certain conditions. The Court found that the contractor who constructed the tank had a duty to warn where the contractor acquired knowledge that a hazardous condition existed in the ordinary usage of the construction. The Louisiana Supreme Court in Bunge Corporation v. GATX Corporation, justified the imposition of such a duty by saying:
There is a high degree of reliance by one who contracts with another to build a building intended to last many years. Given this degree of reliance, the superior knowledge of the builder and his access to information concerning industry improvements and advances, it is only logical that the builder who acquires knowledge that can prevent personal injury or property loss has a duty to convey that information to those for whom he has built. The failure to disclose information which is not available to discovery by the ordinarily prudent and reasonably diligent owner, and which if known can help the owner prevent serious property damage or personal injury, violates the duty to behave reasonably. Faced with this set of circumstances, the ordinary ethical person should disclose.
Therefore, there is a duty of disclosure placed upon the builder who subsequent to sale acquires knowledge of a hazard which arises from the ordinary usage of his construction and which creates a danger of personal injury or property damage.
In Kemper v. Don Coleman, Jr., Builder, Inc., the contractor became aware of drainage problems in a bayou near the project, but failed to warn the plaintiff, home buyer of that hazard. Plaintiff conceded there was no design defect in the home or subdivision drainage system. The Second Circuit, citing Bunge Corporation v. GATX Corporation, held the builder was liable “because he breached the duty to disclose by failing to warn the plaintiff (homeowner) of the drainage problem and risk of flooding.”
This duty extends not only to the owner of the construction, but also to third parties. In Morgan v. Lafourche Recreation District No. 5, the Third Circuit said:
In general, a contractor owes third parties a duty to exercise ordinary care and refrain from creating hazardous conditions in the fulfillment of its contractual obligations. (Citations omitted.) A contractor, however, is not the guarantor of the sufficiency of plans and specifications drawn by another, and if it complies with those plans and specifications, it is entitled to immunity under LSA-R.S. 9:2771. It cannot rely blindly on plans and specifications, however. To avoid liability, the contractor must prove either that the condition created was not hazardous or that it had no justifiable reason to believe that its adherence to the plans and specifications created a hazardous condition. (Citations omitted.)
The burden of proof is placed squarely on the contractor and requires he prove a negative to avoid liability.
It is in this context that allegations of hazardous conditions created by mold or other types of “indoor air pollution” resulting in alleged “sick building syndrome” must be adjudicated in Louisiana. With regards specifically to “toxic mold” there is little, if any, guidance from Louisiana appellate courts on how the contractor’s duty will be applied to that situation, or the extent to which mold is a hazardous condition or a cause in fact of illness.
Cases from other jurisdictions have found a contractor negligent for defective construction resulting in mold contamination. In Mondelli v. Kendel Homes Corporation, the contractor was found to be negligent in failing to construct a brick veneer in a workmanlike manner by failing to install felt or tar paper even though not called for expressly in the plans and specifications. The Court said:
The district court found that the greater weight of the evidence established that the brick veneer front was not constructed in a workmanlike manner. The district court also concluded that the flashing between the roofline and the exterior of the wall of the house was not installed in a workmanlike manner. It found that installation of felt or tar paper was necessary to meet good usage and accepted practices of the construction trade in the community at the time the house was built.
However, the trial court in Mondelli excluded testimony by plaintiff’s environmental toxicologist concerning whether mold caused the plaintiff’s injuries, and directed a verdict in favor of defendants. The court found “that there were no standards shown for sampling of the level of spores or mold and any related hazard or danger. The district court found that there were no accepted standards on ‘environmental [air] in residents’ and that Dr. Pour’s testimony would not have general acceptance in the scientific community under the Frye standard. (Citations omitted.)” But, that ruling was reversed on appeal, and the case remanded for trial on causation and damages.
The contractor’s responsibility for mold contamination is still uncertain.
Nevertheless, it seems clear that the contractor cannot blindly rely on plans and specifications and escape liability for hazardous conditions in the work where he was aware that such hazards could be created. The contractors superior knowledge, as described in Bunge Corporation v. GATX Corporation, imparts a duty to avoid hazardous conditions and warn where necessary.
Russel W. Wray is a partner in the firm of Wray & Pierce, L.L.P., in Baton Rouge, Louisiana. Questions or comments can be directed to Mr. Wray at email@example.com.