November 2021 Newsletter Construction Update
Friends and colleagues:
Nothing helps wear off the turkey coma like a riveting newsletter addressing a recent construction law development in Texas. Attached is just such a remedy for your post-Thanksgiving hangover. The newsletter addresses the recent legislation in Texas that overrules more than 110 years of court precedent rejecting the Spearin doctrine. As many of you are acutely aware, the Spearin case from the US Supreme Court generally relieved a contractor of liability in the event that there are defects in the plans and specs provided by the owner. Texas has a long been in the vast minority in rejecting Spearin. Although courts have had a number of attempts over the years to adopt a more modern approach embracing Spearin, they have declined to do so. This is what led to the Legislature taking the reins and creating a new statute that specifically makes a Spearin concept part of Texas law.
While this is good news for contractors, as the newsletter points out, the contractor now has an affirmative duty to not only point out any defects, but also any defects that it might be able to identify through “ordinary diligence.” Our best guess is that we are going to see heavy litigation over that particular clause, as owners might attempt to shift liability by admitting that the plans were defective, but then arguing that it is something so obvious that it should have been caught by the contractor.
Happy holidays to all.