A Warning to Architects & Builders About Design Changes
by Mark A. Cobb
Our construction law colleagues at Kaplin Stewart maintain a very good Pennsylvania construction law blog, and a recent posting by them gives a very important warning to architects, engineers and builders who consider cutting corners to save money. Apparently, an owner/designer of luxury house in Hollywood Hills, California has been charged with involuntary manslaughter after his house caught fire resulting in the death of a firefighter. The builder’s negligent construction technique has been alleged as the proximate cause of the fireman’s tragic death.
The home’s owner, who was also the designer and general contractor, was building the California house in order to shoot the television show “Germany’s Next Top Model”. During the building process, however, he apparently (i) lied about his intentions to install fireplaces in his new home and, subsequently, (ii) used fireplaces designed exclusively for exterior use for his interior. The misappropriated fireplaces, consequently, caused the fire, and, tragically, a fireman was killed trying to put out the inferno.
Los Angeles County prosecutors allege that “grossly negligent construction” led to the fire and the firefighter’s death. Thus, they decided to prosecute the builder/owner.
The warnings conjured by these events are obvious, but they bear repeating.
First, defective construction can harm and even kill innocent people. In this case, a brave firefighter’s life was lost unnecessarily, and this loss, no doubt, impacts the firefighter’s family and friends tremendously. There are too many similar scenarios where defective building techniques have lead to collapses, cave-ins, fires, floods, and other calamities.
Second, efforts to cut-corners and save money at the beginning of a project frequently result in significant damages down the road. In this case, the property has been destroyed, the shooting location of the tv series has been changed, and, the owner/builder faces serious criminal charges and the incumbent attorneys fees surrounding his defense. In addition, the owner may face civil damages in the event that the fireman’s family pursues their own claim against him.
Third, products have individual and specific uses. Do not misuse your construction materials. Do not skimp on quality or quantity if you want to have a building with integrity.
Fourth, do not lie or mislead building inspectors. Although many people quickly tire of government involvement and fees, the inspector’s job is ultimately to ensure safety and quality. This is particularly important in historic states like Georgia. We have many historic houses from the antebellum and Victorian eras, and, thankfully, there are many Georgia communities where these architectural treasures are cherished and restored. There are times, however, when an inspector’s goal and a preservationist’s goal differ, and an inspector might be shown an allegedly completed project which, subsequently, gets changed after the inspector’s departure. Be careful! And, know that you might be liable for these subsequent alterations.
Please, build safely and responsibly.
CONTRACTORS BEWARE OF RETROACTIVE LIABILITY FOR DESIGN FLAWS
by: Mark A. Cobb
A recent development from the United States Supreme Court may have profound repercussions affecting almost everyone in the design, build and construction industries.
This case stems from the 2007 collapse of the I-35W bridge in Minnesota which killed 13 people. The bridge, which had been designed by the engineering firm of Sverdrup & Parcel and Associates, Inc., was completed in 1967. Forty years of use later, the bridge collapsed; although the causes of the bridge’s collapse are still contested, many professionals point to (i) design flaws caused by the original engineers and (ii) Minnesota’s Department of Transportation’s failure to adequately maintain the bridge.
Based upon fairness and foreseeability doctrines, every jurisdiction has a Statute of Repose, Statute of Limitations, Doctrine of Laches or similar concept which limits liability after a certain amount of time. Perhaps this is an extreme example, but if the Roman Colosseum were to collapse, no one would expect to make the original builders liable. It’s just been too long!
1964–Minnesota’s Statute of Repose: In 1964, the State of Minnesota enacted a Statute of Repose which limited actions arising from construction projects to ten years. In other words, the engineers and builders could not be held liable for claims arising from their work after ten years from the completion of the construction. In our example, the builders of the bridge could not be liable for any claims arising from their work after 1977 (tens years from the bridge’s completion). In 1980, Minnesota amended its Statute of Repose to extend liability for an additional 5 years; thus, if this amendment were applied retroactively, those designing and constructing the bridge would not have any liability after 1982 (fifteen years from the bridge’s completion).
2008–Minnesota’s Enacts Compensation Statute: After the collapse of the bridge in 2007, Minnesota enacted new legislation in 2008 known as the “compensation statute”. This legislation allows Minnesota to recoup any payments which the state made to the victims of the collapse from the builders and contractors who worked on the bridge. Thus, although the state’s Statute of Repose limited the contractors’ liabilities after 15 years, a statute enacted 41 years after the bridge’s completion sought to retroactively impose liability on the engineers and builders! In fact, the original designers of the bridge (Sverdrup & Parcel and Associates, Inc.) is no longer intact and has become a part of Jacobs Engineering Group, Inc.
2012–Impact on Contractors: So what has been happening since the enactment of the 2008 statute? It has been in litigation. At the state level, Jacobs Engineering (the successor entity to the bridge’s original design group) has been arguing the unconstitutionality of the 2008 legislation. As the case has worked its way through the state court system, the new compensation statute has been upheld by the Minnesota courts. Finally, after the statute was upheld by the Minnesota Supreme Court, Jacobs Engineering filed a writ of certiorari to the United State’s Supreme Court which asked the high court to review the 2008 legislation and its applicability to construction work completed in 1967 (Jacobs Engineering Group Inc., v. State of Minnesota). Last week, the Supreme Court denied Jacobs Engineering’s request and refused to hear the case.
The impact of this case has wide implications involving contractor liability, retroactive legislation, inability to assess risks; not only that, it opens the field for other states to re-establish liability on construction professionals long after fairness–or even state statute!–allows.
This is a general information article and should not be construed as legal advice or a legal opinion. The content above has been edited for conciseness and additional relevant points are omitted for space constraints. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.
