Table of Contents
Chapter 1
Concrete 101: Introduction to Concrete
1. Portland Cement
2. Hydration
3. Reinforcement
4. Prestressed and Post-tensioned Concrete
5. Aggregates
6. Admixtures
7. Water-Cement Ratio
Chapter 2
Responsibility for Concrete Performance: The Mixture
1. General Contractor Responsible
2. Subcontractor Responsible
3. Department of Transportation (Owner) Responsible
4. Responsibility Shared between Design and Construction:
“The Concrete of the Damned”
Chapter 3
Defective Concrete: Causes and Responsibilities
1. Contaminated Concrete Source: Supplier or Contractor?
2. Defective Concrete—Handling, Placement, and Curing
3. Defective Concrete—Water Added at Job Site
4. Defective Concrete—Water Added at Job Site: Supplier Knew or Should Have Known of the Effect
5. Defective Concrete—Use of Salt
6. Defective Concrete Caused by Finishing, Not Concrete Mix
7. Defective Concrete—Hot Weather Concreting
8. Defective Concrete—Problems with Batch Plant
9. Defective Concrete—Failure to Observe or Discover a Defect
10. Cold Weather Curing Requirements
11. Defective Concrete—Burden of Proof/Mechanic’s Liens
12. Defective Concrete—Building Codes/Economic Loss Doctrine
13. Responsibility for Substituted Materials
14. Delayed Ettringite Versus Alkali Silica Reaction
15. Defective Concrete—Failure to Meet Strength Requirements
16. Defective Concrete—Contractor Paid in Spite of Defects
17. Defective Concrete Aquarium Tanks—Construction Means and Methods
18. Evidence of Shrinkage-Reducing Admixture
19. Admissibility of Animations
20. Award of Costs
Chapter 4
When Does Cracking of Concrete Become a Construction Defect?
1. Why Concrete Cracks
2. Concrete Cracks Occur…Period
3. Industry Guidance
4. When is Cracking Expected?
5. ASCC Position Statements
6. Managing Owner Expectations
7. Case Law 63
8. Cracking is “Normal and Expected”
9. Cracking is a “Defect”
10. Conclusions
Chapter 5
Bidding
1. Authority to Reject All Bids
2. Unit Price Bid—Reformation of Contract
3. Bidding—The Or-Equal Issue
Chapter 6
Standard of Care
1. Standard of Care—Contractor
2. Standard of Care—Contractors and Personal Injury
3. Standard of Care for Acceptance of Concrete Work
Chapter 7
Substantial Performance
1. Substantial Performance Not Applicable
2. Substantial Performance—Concrete Cracks
3. Material Breach—Payable Job
4. Substantial Performance—Overturned Upon Appeal/Mechanic’s Lien
Chapter 8
Delivery Tickets and Job Tickets
1. Delivery Ticket—Language Enforced
2. Delivery Ticket—Documentation Not Part of Contract Terms
3. Delivery Ticket—Inconsistent With Test Results
4. Job Ticket—Enforcement of Indemnity Language on the Job Ticket
5. Summary
Chapter 9
Spearin Doctrine
1. Strength and Curing—Limitations on the Spearin Doctrine
2. DOT Defective Specifications—Spearin Doctrine Applied
Chapter 10
Responsibility for Additional Testing and Load Tests
1. Concrete Adequate but Contractor Still Pays for Load Test
2. Additional Testing—Concrete Supplier Responsible
3. Additional Testing—Contractor Paid by DOT
Chapter 11
Disclaimers
1. “Enforced” but Not Strictly Construed
Chapter 12
Damages
1. Damages—Attorneys’ Fees
2. Damages—Pre-Judgment Versus Post-Judgment Interest
3. Damages—Cost of Repair Calculation 112
4. Damages—Attorneys’ Fees Unaware of Contract Terms
5. Damages—Cost to Restore, Not Cost to Repair
6. Damages—Breach of Contract Versus Negligence
7. Damages—Mental Anguish
8. Damages—Attorneys’ Fees, Delivery Ticket
9. Damages—Fair Preponderance of the Evidence Required
10. Damages—Mitigation, Delay in Reporting Test Results
11. Damages—Pre-Judgment Interest under Prompt Payment Statute
12. Defective Concrete—Measure of Damages
13. Breach of Contract—Loss of Anticipated Profits
14. Damages—Costs of Sidewalk Replacement
15. Liquidated Damages
16. Damages for Emotional Distress
17. Damages—Cost of Repairs vs. Economic Waste
18. Damages—Prompt Payment Act
19. Damages—Mitigation Does Not Apply
20. Damages—Failure to Mitigate Not Found
Chapter 13
Releases and Scope of Release
1. Scope of Release
2. Admissibility of Settlement Agreements
Chapter 14
The Contract and General Conditions
1. Contract Reformation
2. Scope of the Contract—Placing and Saw-Cutting
3. Acceptance
4. Fitness for a Particular Purpose versus Ordinary Purpose
5. Breach of Contract—Responsibility for Defects
6. Breach of Contract—Force Majeure
7. Sales Managers’ Statements Constitute a Warranty
8. Performance Specification
9. Indemnification Contained on Job Delivery Ticket
10. Order of Precedence Clause
11. Importance of Following Claims Procedures
12. Order of Work and Delays
13. Third-Party Beneficiary—Owner on Subcontractor Contract
14. Performance “To Owner’s Satisfaction”
15. Accord and Satisfaction Clause
Chapter 15
Impossibility of Performance
Chapter 16
Unforseen Conditions
Chapter 17
Inspection, Observation, and Supervision
1. Contractor Cannot Rely Upon Testing Agency
2. Defective Gunite; Engineer “Inspector” Held Liable
3. Defective Concrete—Contractor Cannot Rely upon Inspectors
4. Architect’s Responsibility to Observe Contractor Work
5. Obligation to Supervise Construction
6. Negligence of Inspectors—No Governmental Immunity
Chapter 18
Expert Testimony
1. Expert Testimony Required in Case Against Professional Engineer
2. Concrete Burns—Defective Condition/Unreasonably Dangerous
3. “Flagrant Negligence” Does Not Require Expert Testimony
4. Concrete Strength—Expert Testimony/Who Can Serve As An “Expert?”
5. Lack of Expert Testimony—Case Dismissed
6. Expert Testimony Not Required if “Clear and Palpable” Negligence
Chapter 19
Insurance Issues
1. General Liability Coverage
2. Successive Insurance Carriers—Who Pays the Loss?
3. Contractor Not Covered for Design
4. Defective Workmanship—Owner’s/Contractor’s Pitfalls
Chapter 20
Dispute Resolution
1. Judicial Review of Arbitration Awards
2. Arbitration and Collateral Estoppel
Chapter 21
Personal Injury
1. Personal Injury—Concrete Burns
2. Personal Injury—Slip and Fall on Washout Concrete Residue
3. Personal Injury—Protection of Third Parties
4. Placing Concrete—Not Inherently Dangerous
5. Personal Injury—Strict Liability Applied
6. Personal Injury—Danger Obvious
7. Personal Injury—OSHA
8. No Duty to Warn—Plaintiff Aware of Danger
Chapter 22
Miscellaneous Legal Pitfalls
1. Statute of Limitations—What Triggers the Statute of Limitations?
2. Tortious Interference
3. Duty to Disclose
4. Statute of Limitations
5. Anti-Trust Law: It Could Apply to You
6. Juror Misconduct—Performing Experiment in Jury Deliberations
Chapter 23
Depositions
Appendix A
Alphabetical Case Index
Appendix B
Jurisdictional Case Index
Appendix C
ACI 132R-14
Subject Index