4502. Breach Of Implied Covenant Necessary Items Within Owners Control Essential Factual Elements

4502. Breach of Implied Covenant to Provide Necessary Items Within Owner's Control--Essential Factual Elements Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 In every construction contract, it is understood that the owner will provide access to the project site and do those things within the owner's control that are necessary for the contractor to reasonably and timely perform its work. [Name of plaintiff] claims that [name of defendant] breached the contract by [specify what owner failed to do, e.g., failing to procure a disposal permit for hazardous materials]. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of plaintiff] could not reasonably or timely perform [his/her/its] work without [insert short name for item, e.g., a disposal permit]; That [name of defendant] knew or reasonably should have known that [e.g., a disposal permit] was necessary for [name of plaintiff] to reasonably and timely perform the work; That [name of defendant] had the ability to [e.g., procure a disposal permit]; That [name of plaintiff] could not [e.g., obtain a disposal permit] without [name of defendant]'s assistance; That [name of defendant] failed to [e.g., procure a disposal permit] in a timely manner; and That [name of plaintiff] was harmed by [name of defendant]'s failure. 2. 3. 4. 5. 6. ________________________________________________________________________________ New December 2010; Revised June 2011