General Disclaimer Does Not Defeat Differing Site Conditions Claim

摘要

Differing site conditions clauses are ubiquitous, and sometimes required, in construction contracts. Typical of these clauses are provisions that call for an equitable adjustment to the contract in the event that conditions at the site are materially different from those indicated in the contract documents, or if the conditions are materially different from what one would normally expect to encounter at the site. In tension with the traditional differing site conditions clauses are disclaimers of responsibility for soils reports and other site information included in the contract documents that are intended to shift responsibility for assessing site conditions from the owner who provides the information to the contractor that is doing the work. The California Court of Appeals held in Condon-Johnson and Associates, Inc. v. Sacramento Municipal Utility District that a general disclaimer of provided soils reports is not enough to overcome a statutory differing site conditions clause.