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(A revised version of this article appears in The
Construction Lawyer, Volume 20, No. 4, October 2000, published
by the American Bar Association's Forum on the Construction
Industry.)
By John W. Ralls
A
contractor agreed to construct a fish screen for the U.S.
Bureau of Reclamation. In order to construct the fish screen,
a section of an irrigation canal had to be drained, and
the flow of an adjacent creek had to be diverted.
BuRec's
solicitation included detailed drawings, specifications
and flow records for the creek. The specifications obligated
the contractor to undertake whatever studies were necessary
to " 'assess the reliability and accuracy of the information'
" provided by the government. The contract documents
also provided that the contractor would have full responsibility
for the adequacy of the diversion of water during construction.
After
some delays pushed the work past the irrigation season,
representatives of local governmental agencies, ranchers
and an Indian nation met with the contractor and the BuRec
to discuss the creek diversion plan. A revised plan was
developed. It involved the construction of a cofferdam across
the creek and the diversion of water into a bypass channel
that connected with the creek downstream from the cofferdam.
During
construction, severe rainstorms increased the flow of the
creek. Mr. and Mrs. Graham, who owned and operated a ranch
upstream from the creek, told the contractor to remove the
cofferdams. The contractor refused. The creek overflowed,
flooding the Graham's ranch.
The
Grahams sued BuRec, and settled. The Grahams then filed
a separate suit against the contractor.
The
trial court granted the contractor's motion for summary
judgment, concluding that the contractor was immune from
liability by virtue of the government contractor immunity
doctrine. The Washington Court of Appeal reversed. Graham
v. Concord Construction, Inc., 100 Wash.App. 851, 999
P.2d 1264 (2000)
Under
the government contractor immunity doctrine, if a contractor
performs in accordance with government-supplied specifications
and under the government's supervision, the contractor is
not liable for damages. However, a contractor remains liable
for damages caused by its negligent performance of the work.
The
contractor argued that it fully complied with the government-supplied
specifications, that it was not required to conduct hydrological
studies and that it performed its work following daily inspections
and express approvals by the BuRec.
In
opposition to the summary judgment motion, the Grahams provided
testimony of an expert that the contractor was negligent
because it failed to conduct an independent study of the
flow records of the creek, because it failed to evaluate
the weather and river stages that could be expected during
construction and because it failed to divert the creek to
maintain the natural flow.
The
court concluded that these opinions raised genuine issues
of material fact concerning whether the contractor performed
its work negligently. As a result, the court reversed the
trial court's summary judgment order.
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