Defective Construction

Defe ctive Con stru ction 581
Although the phrase “construction defect” or “de ciency in construction” is
a convenient way to refer to some  aw in a structure that distinguishes the
problem from, say, a payment dispute or an OSHA claim, the use of these
shorthand phrases belies the complexity of the subject. The mission of this
chapter is to bring some analytical order to the broad topic of “construction
defects,” identifying some of the myriad ways in which construction might be
deemed “defective” or “de cient,” outlining the speci c legal claims under
which an owner can recover for defective or de cient construction, examining
some defenses that a party charged with defective or de cient construction
might assert, and addressing a pair of special issues that arise in dealing with
construction defects.
22.0 OVerView O F The lega l analysis OF DeFeCTs
In this section, we provide a rough overview of construction defect analysis by
reviewing the types of  aws that may qualify as defective or de cient construc-
tion, and then we provide an overview of the assignment of responsibility for
such  aws.
2 2
Defective Construction
The author thanks Michael Drew, an associate in the New Orleans of ce of Jones Walker; Carla
Ashley, an associate in the  rm’s Baton Rouge of ce; and Mark Mercante, a partner in the
Mandeville, Louisiana of ce of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, for their
valuable assistance in the preparation of this chapter.
582 CO N S T RU C T I O N L A W
A. What C onstitutes “Defec tive” or “Defi cient” Cons truction?
1. Types of Defects or Deciencies
There are many ways in which a property owner may be dissatised with the
results of the design or building process, and the variety of dissatisfaction
makes uniform denition of a construction “defect” elusive. One formulation
describes a construction defect as work performed that falls below the standard
promised or reasonably expected by the purchaser of the work or services.
Another formulation looks at whether there is a lessening in the utility and/or
value of the project. Yet a third formulation looks to the appropriateness or
suitability of the work. However construed, there is general agreement that
actionable defects arise out of the construction process itself and that normal
wear and tear are not “defects” for purposes of construction claims.1
For purposes of this chapter, we will consider completed construction
“defective” or “decient” whenever it fails to satisfy an applicable contractual
or legal standard that imposes requirements on the construction. The task of
the next few sections will be to describe the standards that apply to construc-
tion such that a deviation renders it defective or decient in some actionable
From a broad perspective, consider the many types of deciencies that
might condemn work as defective: (1) materials and equipment furnished
are not of the quality required or permitted by the contract (e.g., the pump
installed does not work or has insufcient capacity); (2) the work is executed
in a defective manner (e.g., paint is applied with inadequate surface prepara-
tion, resulting in premature scaling or peeling of the paint and eventual rusting
of metal structural members); (3) the work, while executed correctly techni-
cally, does not conform to the requirements of the contract (e.g., the contractor
applies the wrong color paint);2 (4) the construction itself is perfectly sound
but violates building codes in effect at the time of design or construction (e.g.,
a re suppression system is functional but undersized); or (5) the work fails
to meet professional standards for design at the time drawings were approved
1. See Richards v. Powercraft Homes, Inc., 678 P.2d 427, 430 (Ariz. 1984).
2. One treatise suggests that nonconforming work may not be defective where there is no
economic consequence to the owner, such as the application of the wrong color paint. See 2 PHILIP
2002) [hereinafter BRUNER & O’CONNOR]. But see American Institute of Architects, AIA Document
A201–2007, General Conditions of the Contract for Construction § 3.5.1 (2007) [hereinafter AIA
Document A201–2007] (listing circumstances under which work may be considered defective,
including nonconformance with the requirements of the contract documents). We intend the
phrase “defective or decient” construction to encompass all failures to satisfy applicable stan-
dards of construction as discussed in this chapter.
Defe ctive  Con stru ction 583
(e.g., the roof is designed without taking into account snow loads and the
building collapses during a heavy winter storm). Although each of these may
constitute a construction “defect” or “deciency,” the legal standards under
which they are condemned as aws may be different for each of the causes
listed. In assessing claims for construction defects, the rst step is to deter-
mine the standard that applied to the construction at issue and the manner in
which the construction failed to satisfy that standard. The variety and sources
of standards are discussed throughout the chapter.
2. Manifestations versus Defects
As the reader approaches construction defects claims, it is vital to note that
defects or deciencies must be distinguished from their manifestations. While
these terms are related—and, often, both must be corrected—a manifestation
is to a defect what a symptom is to a disease. The manifestation is the obvious
or apparent visible condition that serves as notice of the possibility of a defect.3
While a defect and its manifestation may be the same thing, oftentimes they
are not. For example, a crack in a newly constructed wall is the manifestation
of some defect—but what defect? Consider:
1. Is the crack the result of a problem with the material used to construct
the wall?
a. Were the material components defectively manufactured?
b. Did the design call for improper materials to be used on the wall?
c. Was the material improperly prepared?
d. Was the material improperly installed?
2. Is the crack the result of a problem with how the wall is attached to the
rest of the structure?
a. Did the design call for adequate reinforcement?
b. Was the wall improperly constructed?
c. Was the material reinforcing the wall defective?
3. Is the crack the result of a problem with how the structure’s foundation
was constructed?
a. Were the cement or supports improperly manufactured?
b. Was the foundation improperly designed?
c. Was the foundation improperly constructed?
3. See generally Bd. of Trustees of Santa Fe Comty. Coll. v. Caudill Rowlett Scott, Inc., 461
So. 2d 239 (Fla. Dist. Ct. App. 1984). There, the plaintiff discovered leaky pipes shortly after the
completion of construction. However, it was not until years after this discovery that plaintiff was
able to determine that the defect causing these leaks was the contractor’s decision to bury the
pipes in clay, causing them to corrode.

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