How To Identify The Negligent Party In Construction Litigation

Posted on: 10 June 2020

One of the most challenging aspects of construction litigation is determining who the at-fault party was. Issues can arise from the work of architects, suppliers, contractors and subcontractors, and third-party services providers. Worse, the name of the game for defendants in this sort of business litigation is "Not It!"

You'll need to identify the target of litigation before you proceed. Here are a few things to consider.

Determining the Most Proximate Cause

A major aspect of negligence is determining what might have been the proximate cause of a problem. Consider the questions that might arise from structural failure. Did the problem originate with the designs, or did it arise from poor workmanship? Could the materials have been fundamentally flawed?

This issue can extend further. For example, a problem with materials could break one of two ways. First, the contractor responsible for acquiring them might have skimped. Second, the quality of the materials might have been compromised or misrepresented.

Narrowing these issues down to the proximate cause is important. From there, you can identify who was at fault for what happened and pursue a suit against them.

Assignment of Liability

Many contracts assign liability to specific parties. This is often provided as a sweetener to attract talent. For example, an excavation company might require the property owner to take on liability in exchange for accepting a contract. Your construction litigation attorney will have to closely review the verbiage of such assignments to determine how enforceable they are and who to pursue action against.

Ruling Out Outside Causes

In particular, it's critical to rule out force majeure. If a weather-driven event created conditions for failure, that can be problematic.

However, construction work is usually expected to hold up to normal and even adverse conditions. For example, a company that did concrete injection to sure up the base before a foundation went in may have a hard time invoking force majeure if the weather wrecked their work. Presuming the clause was written by a competent lawyer, it shouldn't remove liability for failures under conditions that should be anticipated. Even if those conditions are rare for the location, a reasonable person would still expect the work to hold up to something like a 100-year flood.

Exhaustion of Remedies

You'll need to provide the at-fault party with notice that you have concerns. Likewise, most courts will expect you to exhaust available remedies, such as having the contractor fix the problem. Only then can construction litigation go ahead.

For any more questions you may have regarding construction litigation, contact a local expert today.