This feature is a part of "The Dotted Line" series, which takes an in-depth look at the complex legal landscape of the construction industry. To view the entire series, click here.
Within a day of the collapse of the Champlain Towers South condominium in Surfside, Florida, the lawsuits began.
While most of them to date have been aimed at the building's condominium association, the city of Surfside and the engineering firms that conducted inspections on the structure, others target "any person or entity that might bear some responsibility" for the tragedy, according to news reports.
Construction attorneys say contractors often make the faulty assumption that they can't be held liable for damages that arise from events that happen on projects they built years ago. It's true that implied and express warranties for construction or material defects on projects are usually limited to one to three years, and that the statute of limitations on construction defects, depending on jurisdiction, is usually limited to no more than 10 years.
But that doesn't mean contractors can't be the target of litigation decades after completing a project if a failure occurs.
"In New York, the statute of limitations on a construction defect is six years from the date of substantial completion," said Megan Yllanes, a partner and co-chair of the general liability defense practice group at law firm Kaufman Dolowich & Voluck. "But for personal injury, it's three years from when an injury occurs. So in theory, litigation could be brought many, many years later, including 40 years later."
Gregg Schlesinger, a Fort Lauderdale, Florida, attorney and licensed general contractor who lives 5 miles from the Surfside collapse, said contractors assuming their liability is over once the job is done is a common misconception.
"I hear it from contractors all the time: 'We're not responsible,'" Schlesinger said. "Well, yeah, you are."
A moral obligation
Beyond liability, attorneys emphasized to Construction Dive that contractors have both a professional and moral obligation to make sure their work is sound.
"A contractor has a duty to perform construction of a project in accordance with the applicable building codes, the approved plans and specifications, and standards of good workmanship," said George Breur, partner at Mark Migdal & Hayden. "If a contractor breaches these duties and causes defective work, it is responsible for the resulting damages."
Good workmanship is also explicitly called out in many contracts, including the templates included in the American Institute of Architects' General Conditions contract series.
"The AIA standard calls for work to be free from material defects, with the work performed in a sound and workmanlike manner," said Carol Sigmond, a partner in the construction practice group at Greenspoon Marder.
Contractual vs third-party litigation
One distinction to keep in mind when it comes to litigation arising from construction or material defects are the contracts binding contractors, subcontractors and owners, which are distinct from the additional liability that builders can still face from third parties, such as a resident who is injured on a property due to a failure.
For example, if a failure occurs after completion of a project, an owner will typically seek to hold a contractor liable for all damages based either on breach of contract or breach of warranty, according to Ronald Williams, a partner and co-chair of the construction law group at Fox Rothschild.
Those aspects of contracts between owners and contractors are the ones that are usually time-bound, from the date of the discovery of the defect, or when it should have been discovered, such as during a final walkthrough.
But for claims by third parties for personal injury and property damage, "if a contractor is determined to have negligently constructed a facility, the contractor will likely have exposure for any and all personal injury and property damage that result from that negligence," Williams said.
That concept applies to projects performed as joint ventures among multiple contractors, as well. "It would be typical for every party of that joint venture to be brought into a lawsuit," Yllanes said.
Patent vs. latent defects
Much of the confusion among contractors surrounding the liability they do or don't have for incidents that occur on completed projects comes down to the definition of patent versus latent defects, and a legal concept known as the Slavin Doctrine.
"A patent defect is one that you can see with your eyes," said Schlesinger, such as a door that doesn't shut correctly, or a window that's installed upside down, an error that would be obvious to a layperson. A latent defect, on the other hand, "is a defect that's hidden or not easily detectable," he said, such as concrete not being poured to specified strength.
Under the Slavin Doctrine, contractors can't be held liable for injuries sustained by third parties when the injuries occurred after a contractor completes their work, the work is accepted by the property owner and the defects causing the injury were patent.
But for latent defects, such as not enough rebar being used in structural concrete, Slavin doesn't apply. "In that case, the contractor is still on the hook," Schlesinger said.
Do the right thing
The best course of action for contractors to protect themselves from liability is to perform their work in a diligent and professional manner and not cut corners, attorneys say.
"If you see the structural drawings call for #3 rebar, and you believe it should be #5 or #8, don't build it that way. Bring it to someone's attention, and figure out what it should be," said Schlesinger. "Don't try to sneak something in, because you end up being responsible for it. Be a professional, and do the right thing."
The Dotted Line series is brought to you by AIA Contract Documents®, a recognized leader in design and construction contracts. To learn more about their 200+ contracts, and to access free resources, visit their website here. AIA Contract Documents has no influence over Construction Dive's coverage within the articles, and content does not reflect the views or opinions of The American Institute of Architects, AIA Contract Documents or its employees.