For Engineers & Architects: Top 10 Construction Law in NC Blog Posts

top10Since I have so many newer readers here at Construction Law NC, I thought a brief summary of some of the most popular posts might be helpful.  (I have also added this list to the About Me & Contact Info page, in case you want to refer to it later).

Presented below are the top 10 posts by popularity (although the list does fluctuate some):

  1. “Substantial Completion” on the Construction Project: How is it defined?  (always a popular post; owners want every last paint scratch fixed before they are willing to consider the project complete)
  2. The Sticky Statute of Limitations in NC  (the general rule: 3 years from date of service; however, there are many exceptions)
  3. Statute of Repose: Putting your Risk to Bed  (after 6 years, in North Carolina, even the exceptions to statutes of limitations don’t help)
  4. Planning Ahead for Additional Compensation  (money; cause, we all need to get paid!)
  5. Spring Cleaning: 6 Contract law tips for limiting risk on construction projects  (contracts are the first step in limiting your risk- read here to learn how to make them effective)
  6. How to Smartly Handle Project Documents  (your policies and procedures with documents can make or break a lawsuit)
  7. The Architect’s and Engineer’s “Standard of Care”  (note: perfection is NOT the standard!)
  8. Design Error and the Spearin Doctrine (why your designs must actually, you know, work!)
  9. Active vs. Passive Negligence (sharing the blame, unequally, when something goes wrong)
  10. Adding an “Additional Insured” in the Professional Services Agreement: an exercise in futility!  (for those times when you have an obtuse owner- show them this!)

Are there other posts that you think should be added to this “Best of” collection?  Wish I had written a post on your pet topic?  Share below.

Photo (c) Independent Association of Businesses.

Even a text can make a contract! (law note)

text message bubblesI’ve written many times about how you should–indeed, must–document your construction project in case there are problems or disputes later on.  Of course, you need to update the plans and specs.  But equally important, you need to document agreements to do things outside of the contract documents and also all verbal directives from the owner.

Tennessee lawyer Matt Devries recently wrote a nice blog post entitled:  LOL! OMG. HUH? Court Finds That Text Message Can Form Binding Contract, discussing  how even text messages can be legally binding.  Something to remember, and learn from.  I always tell clients I’d like to see any deviations signed by all parties, but failing that, a fax or email will do.  Just don’t rely on a conversation alone.  Texts are *not* the preferred method of documenting something for the court, but they are better than nothing.

Read Matt’s post and drop him a line.  And comment below if you’ve ever considered using text messages to establish a written record of agreements.

Photo courtesy Pixabay.

Explaining Negligence in the Construction Industry (Guest post)

Today, a guest post by Anne Roberts.  Anne Roberts is a freelance writer. She writes blog posts, how-to articles, SEO copies, and many other types of content for several websites. Anne is currently a web content writer for personal injury attorneys.  (But we like her anyway!!)

Explaining Negligence in the Construction Industry

The construction world can be regarded as one of the most dangerous industries to work in. Because of the inherent hazards that come with working on a construction or repair project, both construction professionals and laborers uphold certain standards to ensure a safe working environment.

Contractors, surveyors, engineers, project managers to employers–all have a duty of care to observe. They make sure that assessments of risks involved in any facet of construction are made. Laborers, on the other hand, benefit from the assessments by exercising preventive measures.

Still, accidents happen.

Acrobatic_Construction_Workers

Some of the most common accidents that occur in construction sites involve six-feet-or-more falls from ladders or stairs. Other accidents are caused by the failure to implement safety precautions, such as improper building of scaffolding, use of dangerous tools and unsafe machinery, and other hazardous issues.  Without proper implementation of safety precautions, working on an elevated surface may result to debilitating injuries and even death.

According to the Bureau of Labor Statistics (BLS), it has been estimated that fatal accidents involving construction workers accounted for 15 percent of all job-related deaths in the U.S.  Such injuries or deaths may not have happened if a certain construction or repair project employed safety rules or standards of care. Such occurrence is categorized as construction negligence.

Determining Liability 

When a serious accident happens, usually all parties involved are brought into the litigation, as cross-allegations of construction safety issues, construction defects, and construction administration/observation/inspection issues.  In North Carolina, an employee cannot sue his employer for a workplace accident (but instead seek a workers’ compensation recovery).  The employee can, however, bring a negligence action against any/all (other) responsible third parties.  [Editor’s Note: The parties may have rights to recover against each other if one is actively negligent and one is only passively negligent.  Otherwise, joint & several liability applies.]

To establish negligence, the injured party must prove the following four factors:

  1. The construction professionals involved have a duty of care;
  2. They breached or violated that duty of care;
  3. The breach of duty of care resulted to an injury; and
  4. The injury was the result of the construction professionals’ negligence.

[Editor’s Note:  The injured party also must not have been contributorily negligent.]

Other than in a construction or repair project site, construction negligence also happens on highway construction and post-construction efforts. Unsafe conditions during roadwork can be considered negligence, especially if workers, as well as motorists, consequently sustained certain injuries.

Even a complete building can be a source of negligence, in which the contractor or subcontractor failed to adhere to building codes. Construction defects, such as low structural integrity of the building, mechanical and electrical failure, and low-quality finishes, may lead to injuries and deaths.

Melissa again:  Thanks Anne for your post!       Readers:  Watch this space– I’m planning on posting an infographic tomorrow that will show construction accidents & related statistics.  Stay tuned.  In the meantime, please leave any questions or thoughts in the comment section, below.

 Photo of workers on bamboo scaffolding (c) Terrance TS Tam.

 

 

 

Construction, er make that CONTRACT, Administration services: a primer (law note)

[Update 12:42 pm ET, 11/3/11– CA is for Construction Contract Administration, or “Contract Administration” for short- thanks Liz O’Sullivan]

 One of the Architect’s responsibilities on a construction project is that of construction contract administration (“CA”).  While not every contract contemplates the architect performing a CA role, most commercial construction projects do.  What, exactly, should be included in the CA role?  The CA role can be whatever the parties agree upon.  In fact, the AIA A201 form contract documents anticipate that the architect’s role will be defined in an exhibit. 

Construction Construction Contract Administration
§ 4.2.10 If the Owner and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect’s responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents.
What, then, should be included in the CA role assigned to the architect?  The nature of the construction administration role is project specific.  Some projects require a full-time on-site architect, a clerk of the works, or a weekly or bi-weekly site visit.  Because the nature of the CA role cannot be adequately described in a form document, it is especially critical that you take care to describe the specific CA duties assigned to the architectural team in detail.
site observation by architect
 
One of the main CA roles for the design team is that of site observation. Consider:
  • What frequency is contemplated for visits?
  • How long should those visits last? 
  • What is your role during such site visits?
I see many disputes that arise over a misunderstanding as to how often the architect should be on-site, and what his role is in observing the contractor’s work once he is there.  Again, being specific will only help you to avoid misunderstandings, possible litigation, or even extra liability later on.
 
Perhaps the most important concept to remember for your CA role on a construction project: never agree to “inspect” the contractor’s work.  Your role should be observation to see that the work is in general conformance with your design.  You cannot guarantee the contractor’s work (nor would such be insurable).  Therefore, be careful to use the word “observation” and not the word “inspect” in your CA description.
 
What have been your construction observation experiences? Drop me a line and tell me your story.  (And thanks to my many new readers to the blog this week!).
 
 
 
 Photo (c) Mark Hogan via CC.
 
 

 

Planning Ahead for Additional Compensation

money for additional services for construction administration

Does your designer contract have provisions in it for additional compensation in the event the construction project takes longer than the parties anticipate?  If you use the AIA 201 (2007) general conditions for the Contractor, it may.  The AIA provisions include:

 

 § 1.1.2 THE CONTRACT

The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Contractor and the Architect or the Architect’s consultants, (2) between the Owner and a Subcontractor or a Sub-subcontractor, (3) between the Owner and the Architect or the Architect’s consultants or (4) between any persons or entities other than the Owner and the Contractor. The Architect shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect’s duties.

The language that I bolded is very important language.  It may provide a mechanism to recoup additional service fees for extended construction administration services.  Note, however, that I said “may.”

If your fees are based on a set number of construction days, what happens if the project gets extended?  Do you simply go without pay for extra months of CA services?  Do you re-negotiate with the Owner at that time?   You should consider this issue in advance to avoid disputes later on. 

Best practice?  A clause in the Owner-Designer contract that states that additional services compensation will kick in after a certain date,  at a set value per month.  

If you wait until the issue comes up during the final phase of construction, you have much less bargaining power.  You also run the risk of the Owner claiming errors and omissions against you when you present a bill for extra services.  Deal with the issue up front, in much the same way that unit prices for rock overages are provided for upfront in the contractor’s contract. 

Do you have experience with getting additional compensation after construction delays?  What worked best for your company?  Share below. 

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 Photo (c) Freefoto.com via Creative Commons license.

 

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