August 18, 2009

Construction defects claims arise in all venues of the construction industry, and may be attributable, whether directly or indirectly, to building products defects and failures.

Defect claims involving construction typically involve a design mistake or deficiency in the planning, design, construction documents, contract documents, administration (“supervision”), inspection, or implementation of any improvement to real property.

Construction defect claims may be attributable to any one or more related aspects of the complex building process, namely: (1) interpretation of the construction documents, (2) failure of the structural system or any of its components, i.e. floor and ceiling failure, (3) water intrusion i.e. water leaks, (4) sound, vibration, or mechanical noise, (5) soil subsidence, (6) wood decay, mold, and (7) to product failure, to name only a few potential claims.  An experienced construction defect lawyer and forensic engineer should be retained to assist in evaluating and defending or addressing these claims, as part of a cohesive, professional, litigation support team.

Initially, construction defect liability may be based on the decisions of the architect-engineer or builder and/or developer, since they are (each) in a  primary position to decide budgets, applicable building codes, construction strategy, procedures, limitations, and implementation.  The A/E must stress the need for testing and analysis of soil and sub-surfaces, and to design based upon soil stability and support, in order to prepare adequately before placing foundations.  This is only a limited example of the several important preliminary evaluations required.  Next, where soil and subsurface conditions are poor, or unacceptable, the responsibility of the A/E designer and builder- developer shift to a duty to choose the best construction strategy to preclude building failure and construction defects, injuries or deaths.

At the first sign of a construction defect or failure, fully document all factual issues with photographs, videotape, written memoranda and full communication of all observations and reports to the highest authority in charge of each project.  Construction defects in any building project may be attributable to a complex variety of causes. Determining whether a cause is the proximate cause, and the actual construction defect is a critical  challenge. However, once determined that a construction defect exists, it is essential to develop a strategy to determine who is responsible for the defect, and who shall bear the cost to cure or repair?

The causes of construction defects and construction deficiencies (poor quality or substandard workmanship) and subsurface/geotechnical problems are extremely difficult to detect and often even more difficult to repair or cure. The priority is to restore the building to full occupancy in a safe and economically productive condition. This can be an arduous task unless Counsel is familiar with all aspects of the construction process, from land development to occupancy, and all that goes with it. 

The entire chain of participants in any construction project, from Developers to Owners, Investors, Architects, Engineers, Contractors, Subcontractors, and even to Suppliers and to Manufacturers of Building Products, without the technical training, experience and knowledge of the construction-legal process are at a distinct disadvantage, and should seek experienced Construction Counsel as an advocate, to provide informed guidance, representation, and risk reduction.

"Judge a man by his questionsrather than by his answers."
Voltaire

Author/ Editor:  J. NORMAN STARK, J.D., B.F.A., B. Arch., is an Attorney-at-Law, a Registered Architect, (AIA, NCARB), Registered Landscape Architect, Interior Architectural Designer, Planner and Senior Appraiser (ASA).  He is a Mediator, Arbitrator and Litigator, admitted to practice law before the Bar of Ohio, the US District Courts of Ohio and Illinois (Central Dist.), the US Court of Appeals, and the U.S. Supreme Court. A former Member of the Ohio Board of Building Standards, he has professional experience in General Practice, Business, Construction, Real Property, Mechanics’ Liens, Litigation, Collections, Construction-Legal Claims, Project Management and Expert Witness Support.  His office is in Cleveland, Ohio; he commutes from his home and office in SW Florida.