Contractors who discover defects or mistakes in their work face a dilemma: ignore them and risk liability, or fix the problems and risk a court sanction. If litigation develops down the road, contractors who destroy or remove evidence—even with the best of intentions—can wind up paying damages in court.
Repairing faults in construction work
Unfortunately, there is no easy way to balance the immediate need to repair against the equally important need to protect evidence. Construction defects create a host of complications. Despite a compelling need to preserve evidence of fault, ignoring a construction defect or mistake in the work can tempt disaster. Oversights that compromise a building’s structural integrity can cause injuries and property loss.
Errors also result in delays that tend to roll downhill, throwing subcontractors off schedule and jeopardizing an entire project. In many cases, it’s also impossible for a contractor to track down the exact party responsible for the defect; and equally problematic, the subcontractor at fault may not be trustworthy or skilled enough to remedy the defect.
Surprising complications can arise even when contractors make good faith repairs, and in doing so, remove or replace what is later determined to be important evidence in a legal case. When this happens, courts consider a number of factors to determine whether a contractor should be penalized for making a repair.
The court’s primary concern is the contractor’s intent. The court considers whether the contractor acted specifically to destroy evidence, or whether this happened to prevent harm and address safety concerns on the jobsite.
Did contractors take the time to properly notify owners, potentially responsible parties and other people involved before acting? Those who give notice generally fare better than those who do not.
Injury to the case
Courts try to determine just how much the repair, replacement or removal may have hurt the case. If other evidence exists that provides insight regarding the defect, this reduces the problem.
What’s a contractor to do?
As we have pointed out, just going ahead and fixing construction defects or mistakes can be risky, so here are five steps every contractor should take:
1. When a defect is discovered, gather information about the parties who may have caused the problem.
2. Prior to repair, immediately notify all subcontractors who might be responsible. Each subcontractor should have an opportunity to inspect the defect and assemble evidence, such as reports and photographs.
3. Consider hiring an expert. Subcontractors well-versed in litigation might ask for an expert opinion regarding the defect.
4. When it’s time to make repairs, notify all the parties involved and do so by return receipt so you can show that you provided notice. Include the name, address and contact number for the subcontractor making the repair, as well as the date the work is scheduled to commence.
5. Provide every potentially responsible party the opportunity to supervise the repair.
Taking these precautions won’t always avoid a future legal issue, but it will surely help to minimize a contractor’s exposure if litigation develops.
Alexander Barthet is principal of The Barthet Firm, a 10-lawyer construction law practice that has been serving South Florida’s construction industry for 20 years. Learn more at www.thelienzone.com.
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