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"Good Samaritan" Civil Engineer Escapes Liability

Apparently, some good deeds do go unpunished.  Such was the finding of the California Court of Appeal in the matter of State Ready Mix, Inc. v. Moffatt & Nichol, 232 Cal. App. 4th, 1227.

This lawsuit arises from the construction of a harbor pier at the Channel Islands Harbor in Oxnard, California.  Major Engineering Marine, Inc. ("Major") was the general contractor on the project.  Moffatt & Nichol ("Moffatt") was the civil engineer that prepared the plans for the pier.  State Ready Mix, Inc. ("State") was Major's concrete supplier.  State was responsible for developing the concrete mix design to meet Moffatt's performance specification for the project.

State submitted a concrete mix design that called for Micro Air (an air-entrainment chemical) to be added to the concrete.  Moffatt, at the request of, and as a favor to, Major, reviewed and approved the mix design although under no contractual obligation to either Major or State to do so.

On the day of the pour, State encountered a mechanical failure in its chemical dispensing equipment.  Instead of postponing the pour until its equipment could be repaired, State chose to manually add the Micro Air into its trucks resulting in significant overdosing of the concrete mix.  State admits that the overdosing prevented its pour from reaching the compressive strength called out in the Moffatt design.

Major demolished and rebuilt the affected portion of the pier.  Major then sued State to recover damages.  State cross-complained against Moffatt arguing, among other things, that Moffatt owed a duty to protect concrete suppliers based on the good Samaritan or negligent undertaking doctrine.  The Court disagreed.

The court found that State's concrete was hastily and erroneously mixed and delivered to the project site.  After the concrete dried, it did not injure anyone or damage other property.  In rejecting State's claims against Moffatt, the court held that "the negligent undertaking theory of liability permits damages for personal injury or property damage, not economic losses."

Of course, this ruling begs the question as to what would have happened if the pier collapsed and someone was injured or third party property was damaged.  In this particular case it is likely that Moffatt would have still escaped liability, as the evidence seemed to support a finding that it was improperly mixed concrete, not the faulty mix design reviewed and approved by Moffatt, that led to the concrete failing to meet the performance specification.

That being said, it remains a risky proposition for any party to a complex construction project, be it a designer, general contractor, subcontractor or vendor to provide services outside the scope of the parties' contracts.  While Moffatt was able to escape an indemnity obligation in this case, I'm certain that the costs of Moffatt's kindness (as measured by the attorneys' fees and costs it likely spent in this lawsuit) still outweigh the benefit it obtained from gratuitously reviewing and approving State's concrete mix design.

If you need assistance in reviewing your contractual responsibilities on a given project please do not hesitate to contact one of the California construction lawyers in the Bowles & Verna Construction Law Practice Group.

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