Basic Construction Law
Chances are that at one time or another a project superintendent will become involved in a legal proceeding caused by a dispute between the contractor, client, design consultants, subcontractor, or supplier or even an employee of the company. Our society is quick to sue when wronged, and with more than 700,000 attorneys practicing in the United States (one for every 5 square miles) there are plenty of Iitigators ready, willing and able to assist those who wish to pursue legal action. The purpose of this chapter is not to create more "guard house" lawyers but to familiarize the project superintendent with the more common types of disputes and claims, why they occur and what should be done if one looms on the horizon. Legal matters fall into two broad categories-criminal and tort law. Criminal law needs no introduction to 1V viewers. Tort law can best be defined as a civil wrong, one in which the court hands down a decision involving monetary rewards rather than jail sentences as is the case where criminal law is concerned. Tort law involves disagreements over personal, property or economic conditions and these disagreements may have come about for one of the following reasons: 1. Intentional, 2. Through negligence, or 3. Neither intentional nor through negligence, which in legal terminology is referred to as nonculpable. Although the law is the law, each case is tried on its own merits, and a court decision in one case based on what seems to be similar circumstances in another may not result in the same decision. For instance, one court decision ruled that a contract requiring a contractor to treat all earthwork as "unclassified" voided the contractor's claim for an extra cost for rock removal, when rock was discovered during building excavation. In another case, however, under the same conditions, the court ruled in the contractor's favor, stating that the contractor was misled by the erroneous test borings included in the bid documents. How would you rule in the case of the paving contractor who signed a contract to resurface an asphalt parking lot and the specifications accompanying the bid request did not require the contractor to replace any existing sub-base? However when the S. M. Levy, The Construction Superintendent’s Handbook © Van Nostrand Reinhold 1992
The Construction Superintendent's Handbook
new paving was being installed, it began to crack because the sub-base was inadequate. Should the paving contractor be held responsible for the cracking of the new surface even though the contract excluded any work on the sub-base? The Court of Appeals in Louisiana held the contractor responsible because he should have used his expert knowledge to advise the owner of a potential problem. Each dispute or claim must be viewed and assessed on an individual basis and judged on its own merits with no conclusions drawn until a legal expert has reviewed the facts. When it appears that a claim or dispute is in the offing, the superintendent should begin collecting all of the facts surrounding the disagreement in case it escalates into a formal complaint.
WHAT TRIGGERS MOST CONSTRUCTION DISPUTES?
1. Plans and specifications that contain errors, omissions, ambiguities, or construction details that don't pertain to the particular project under construction. 2. Incomplete responses, inaccurate responses or even nonresponses to questions requested by one of the parties to the contract. 3. Inadequate administration of the project by either the general contractor, owner, design consultants or subcontractor. 4. Unwillingness or inability to fulfill the requirements of the contract. 5. Site conditions that differ materially from those contained in the contract documents. 6. Existing conditions, other than site conditions, that differ materially from those in the contract documents (particularly when working on retrofit or rehab projects). 7. Extra work-change orders. 8. Delays,...
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