When a construction defect results in injuries or requires costly repair work in order to make the property safe, a number of individuals (or entities) could be on the legal hook.
This article discusses who might bear legal responsibility for construction defects. First, we'll describe some key legal concepts that are useful in evaluating liability. Next, we'll identify situations that might result in responsibility for particular parties.
There are two basic types of construction defects: defects that occur during the design of a home or building, and defects that occur during the building phase. As a general principle, an architect or engineer is usually responsible for defects in the design of a construction project. A builder, usually a contractor or subcontractor, is usually responsible for defects caused by a failure to conduct work according to design specifications, or in line with accepted industry standards.
A construction defect can cause a variety of problems:
Contracts. The law of construction defects is largely based on contract. Think about how many contracts might be involved in a single construction project:
Every one of those contracts will probably have provisions indicating which party will be responsible for which type of defect. So, when construction contracts are negotiated, it is critical for the parties to pay close attention to the liability provisions. The result of all of this negotiation is usually that liability is passed down the chain. In other words, the owner will require the general contractor to accept responsibility for defects. The general contractor will then require each of the subcontractors to accept responsibility for defects.
Indemnification. This passing of liability is often done with "indemnification" provisions. If a subcontractor indemnifies a contractor for certain liability, it means that the subcontractor guarantees that if the contractor is later sued, the subcontractor will pay for any judgments that are rendered against the contractor. As a result, subcontractors often carry insurance policies protecting them from liability for defects. So, at the end of the day, many lawsuits resulting from construction defects are paid for by insurance companies.
As the discussion above illustrates, liability is often passed down to subcontractors under the terms of the network of contracts that accompany a construction project. But specific situations can lead to liability for any party involved in a construction project. Let's look at a few of these scenarios.
General contractors and subcontractors are generally held liable on the theory of negligent construction.
If someone is injured due to a construction defect, they likely have the right to sue the liable party. In order to win a personal injury case, the plaintiff will usually have to prove:
Establishing most or all of these elements usually requires expert testimony by witnesses who are well-experienced in the kind of construction work at issue.
As with any other personal injury case, a person who has been injured by a construction defect can get compensation for his or her medical bills and other losses ("damages"). Every case is different, but typical personal injury damages include:
If a construction defect might be to blame for your injury, it might make sense to discuss your situation and your options with an attorney. Get tips on finding the right personal injury lawyer for you and your case.