Fixing That Mistake

Patrick Barthet | Construction Executive

Someone once said, more people could learn from their mistakes if they weren’t so busy denying that they made them in the first place. 

In the construction industry, mistakes are not uncommon. Addressing them, however, can be complicated. What should a contractor do when the project owner says some aspect of the project is not satisfactorily completed or isn’t performing as it should? Should the contractor wait, hoping it may get resolved without having to do anything? Or should the contractor take on the repair or replacement as soon as practically possible?

Doing nothing may be easy but can expose the contractor to significant subsequent liability. Dealing with the issue, on the other hand, could result in the destruction of what might later be required evidence in any litigation which develops. Considered “spoliation,” such manipulation or elimination of evidence is a consequence to be avoided. Even though done with the best of intentions to fix a problem, the process can wind up exposing one to liability and damages.

Balancing the immediate need to repair against the equally important need to preserve the evidence is never easy. But it must be done, and done carefully. Consider that what may seem like a minor error could compromise a building’s structural integrity or operational systems. 

If evidence is destroyed, courts look at a number of factors to determine if a contractor should be penalized. What was the contractor’s intent? Did he or she intentionally destroy evidence or was spoliation necessary to prevent further harm and to address safety concerns? Did the spoliation actually hurt the planned or ongoing litigation? If other evidence exists that provides insight regarding the issue, the effect of any spoliation is clearly reduced. 

Given these factors, contractors would do well to follow these guidelines:

  • As soon as a mistake is discovered, gather all available information about who may have caused the problem.
  • Prior to any repair, immediately notify all subcontractors and suppliers who might be responsible in writing. Each should be given an opportunity to inspect the mistake and assemble any evidence at their disposal, including daily reports, photographs, correspondence and videos.
  • Reach out to a construction expert with credentials specifically related to the mistake and have him/her prepare a report.
  • If initiating repairs, advise all parties in writing and return receipt as to the date and time of any repair for proof of having given notice before embarking on the repair.
  • Give all potentially responsible parties the opportunity to participate in overseeing the repair. 

Mistakes will happen. When they do, minimize the loss of evidence as well as exposure to possible claims of spoliation.

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