What should the contractor do?
Finding a defect or mistake in completed work poses a dilemma for contractors. There are two choices they can make:
- Risk liability by ignoring the problem; or
- Risk destruction of evidence by fixing the problem
Both choices can lead to contractors having to defend themselves in a lawsuit and paying huge monetary damages – not to mention the potential harm to their professional reputation.
What’s at stake
So how does a contractor go about making the necessary repairs to construction defects while protecting the evidence? Ignoring a defect or mistake is an open invitation to injuries, scheduling delays, property loss and more. Worse, it’s usually impossible to track down the responsible subcontractor or individual. And worse yet, the responsible party may be untrustworthy or lack the skills to correct the problem.
Steps in the right directions
Spoliation is the willful destruction of evidence or the failure to preserve potential evidence for use in pending or future litigation. A contractor who makes repairs in good faith but destroys evidence in doing so can be penalized by the court. Points to consider:
- Intent is the court’s primary concern, taking into consideration whether the contractor acted to destroy evidence or out of necessity to prevent any safety issues on the job site.
- Contractors who immediately notify owners, subcontractors, potentially responsible parties, and other people involved before acting usually find more favor with the court.
- Providing other evidence that may exist to offer insight into the defect, helps lessen the effect of the spoliation.
How to best protect yourself
As soon as a defect or mistake is discovered, information about the parties who may have caused the problem needs to be collected. All potentially responsible subcontractors need to be notified before any repairs are made. Give each one the opportunity to inspect the problem and collect reports, photographs, etc. as evidence. They may request an expert opinion regarding the defect.
Notify all the parties involved in the repair work by return receipt mail or courier as proof of notification. Your notification should include the date repair work will begin and the name and contact information of the subcontractor making the repair . Offer all of the potentially responsible parties the opportunity to supervise the repair.
There’s no sure-fire way to prevent claims of spoliation. But these taking precautions will minimize lost evidence if litigation develops.
Source: Alexander Barthet, The Lien Zone. April 8, 2014.