Dotted line: Contractors can still be liable for failures years after the project has been completed


This feature is part of The Dotted Line series, which delves deeply into the complex legal landscape of the construction industry. To view the entire series, click here.

Lawsuits began within a day of the collapse of the Champlain Towers South condominium in Surfside, Florida.

While most of them so far have targeted the building’s condos, the town of Surfside, and the engineering firms that have carried out inspections on the structure, others, according to news reports, are targeting “any person or entity that could bear some responsibility for the tragedy” . reported.

Construction attorneys say that contractors often make the mistaken assumption that they cannot be held responsible for damage caused by events that occur on projects they built years ago. It is true that tacit and express warranties for construction or material defects in projects are usually limited to one to three years, and the limitation period for construction defects is usually a maximum of 10 years, depending on the place of jurisdiction.

However, this does not mean that contractors cannot be the target of litigation decades after a project is completed if an error occurs.

Megan Yllanes

Courtesy Kaufman Dolowich & Voluck

“In New York, the statute of limitations for construction defects is six years from the date of major completion,” said Megan Yllanes, partner and co-chair of the General Liability Practice Group at law firm Kaufman Dolowich & Voluck. “But in the case of personal injury, it takes three years to be injured. In theory, litigation could be initiated many, many years later, including 40 years later.”

Gregg Schlesinger, a Fort Lauderdale, Fla., Lawyer and licensed general contractor who lives 5 miles from the Surfside collapse, said contractors assuming their liability is over after the job is done is a common misconception.

“I hear it from contractors all the time: ‘We are not responsible,'” said Schlesinger. “Well, yes, you are.”

A moral obligation

Beyond liability, lawyers told Construction Dive that contractors have both a professional and a moral obligation to ensure that their work is sound.

George Breur

Courtesy Mark Migdal & Hayden

“A contractor is required to build a project in accordance with applicable building codes, approved plans and specifications, and standards of good workmanship,” said George Breur, partner at Mark Migdal & Hayden. “If a contractor violates these obligations and causes defective work, he is responsible for the resulting damage.”

Good workmanship is also expressly required in many contracts, for example in the templates for the General Contractual Terms of the American Institute of Architects.

Carol Sigmond

Courtesy Greenspoon Marder

“The AIA standard requires that the work is free from material defects and that the work is carried out solidly and professionally,” says Carol Sigmond, partner in the construction practice group at Greenspoon Marder.

Contract disputes versus third parties

A distinction that must be observed in legal disputes due to construction or material defects is the contracts between contractors, subcontractors and owners, which are separate from the additional liability of the builder to third parties, for example an injured local resident, on a property due to a defect.

Ronald Williams

Courtesy Fox Rothschild

For example, if a failure occurs after a project is completed, an owner will typically seek to hold a contractor liable for any damage resulting from either breach of contract or breach of warranty, according to Ronald Williams, partner and co-chair of the Fox Rothschild Construction Law Group.

These aspects of owner-contractor contracts are usually limited in time, from the date the defect was discovered or when it should have been discovered, e.g.

But for third party claims for personal injury and property damage: “If a contractor is found to have negligently built a facility, the contractor will likely be exposed to all personal injury and property damage resulting from that negligence,” Williams said.

This concept also applies to projects that are carried out as a joint venture between several contractors. “It would be typical for either party in this joint venture to be brought into a lawsuit,” said Yllanes.

Patents vs. Latent Defects

Much of the confusion among contractors about what liability they may or may not have for incidents on completed projects stems from the definition of patent and latent defects and a legal concept known as the Slavin Doctrine.

“An obvious defect is a defect that you can see with your eyes,” says Schlesinger, such as a door that does not close properly or a window that is installed the wrong way round, a defect that would be obvious to laypeople. A latent defect, on the other hand, “is a hidden or not easily noticeable defect,” he said, such as concrete that is not poured to the specified strength.

According to the Slavin Doctrine, contractors cannot be held liable for damage suffered by third parties if the injuries occurred after a contractor had completed his job, the work was accepted by the property owner and the defects causing the damage were evident.

But Slavin does not apply to latent defects, such as insufficient reinforcement bars in structural concrete. “Then the contractor is still on the hook,” said Schlesinger.

Do the right thing

The best course of action for contractors to protect themselves from liability is to do their job carefully and professionally and not compromise, lawyers say.

“If you see that the design drawings call for rebars # 3 and you think it should be # 5 or # 8, don’t build it that way. Make someone aware of it and find out what it should be, ”said Schlesinger. “Don’t try to sneak something in because you are ultimately responsible. Be a professional and do the right thing.”

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