A recent Idaho Supreme Court case has extended protection for contractors against negligence suits when a project turns out defective. In Craig Johnson Construction v. Floyd Town Architects, the Idaho Supreme court held that a contractor is not liable in a negligence suit when construction was in accordance with plans produced by the owner and/or its architect.

In Johnson, a contractor built a number of condominiums in Ketchum. Due to insufficient venting and improper insulation, the surfaces of the roofs over the ceilings of the condominiums were warmer than the roof surface over the rafters. When snow melted and slid down the roof over the ceilings, it would hit the colder portion of the roof over the rafters, re-freeze and cause a condition known as an ice dam. Snow melt from the roof would then accumulate and leak inside the condominiums, causing almost a half million dollars in damage.

When the homeowners sued the contractor for negligence, the contractor claimed he should be free from liability because he followed the plans and specifications produced by an architect hired by the developer. Agreeing with the contractor's position, the Supreme Court announced a new rule that contractors on a private project cannot be liable for negligence if they reasonably rely on, and follow, plans and specifications prepared by the owner and/or its architect. Unfortunately for the contractor in Johnson, it appeared he failed to follow the plans and, thus, was not entitled to protection under the rule. Nonetheless, all contractors gained some additional levels of protection from liability as a result of this case.

Idaho has long recognized that a contractor who follows plans prepared by or on behalf of the owner is not liable to the owner for breach of contract if the project is defective. Since the 1960's, Idaho has also prohibited negligence suits against contractors on public works projects. However, until the Johnson case this prohibition had not been extended to private projects.

The rule does, however, have exceptions, and contractors should be careful to understand how and when they can lose liability protection. First, this defense is only available to contractors who actually follow the plans and specifications. In many cases, the contractor on its own decides there is a fault in the plans and implements a fix without consulting the owner or architect. In the event the fix makes the problem worse or does not solve the problem, the contractor is once again subject to liability. If it appears the plans are defective, the contractor should insist that the architect and owner produce revisions to the plans. The contractor should make requests for clarification in writing and insist that the fix prepared by the architect be issued as a written change order. When there is no fix forthcoming or the proposed fix appears insufficient, the contractor should contact an attorney for advice.

Second, the contractor should be mindful that it may not rely on plans and specifications if it knows or should have known that the plans are defective. For instance, a contractor in McCall or Sun Valley is likely charged with knowing which designs are effective in preventing ice dams like those in the Johnson case. If such a contractor is presented with plans drawn by an architect from sunny Arizona which do not address the ice dam issue, the contractor should draw the architect's attention to the condition and insist the drawings be revised. Other potential traps exist when owners provide a "builders set" of plans, which are commonly the bare minimum required to obtain a building permit. In such a case it is possible the plans may be too minimal for the contractor to rely upon. In this instance, the contractor should insist on a more comprehensive set of plans. If this is not possible the contractor may consider including the cost of hiring its own architect in its bid, but by doing so the contractor may lose the protection of the rule set forth in Johnson. However, by hiring its own architect a contractor may reduce the risk of defects.

Finally, contractors should be cautious in entering into a "design-build" project where the contractor hires the architect and designs the project. While the Johnson decision seems to imply the contractor is shielded from negligence suits in such a case, it is possible its contract with the architect will contain a provision which requires the contractor to indemnify the architect for negligence claims. While it is not clear such indemnification provisions are enforceable, a contractor would be sorely disappointed to escape liability under the new rule, only to have to indemnify the architect's negligence pursuant to a contract provision with the architect.

If a contractor has questions regarding its protection against a negligence suit, the contractor should consult its attorney for an evaluation of the contractor's liability.