Defective Construction

• Author: Richard J. Tyler
• Pages: 581-614

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

RIC HARD J. TYL ER

C H A P T E R

581

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

sense.

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

L. BRUNER & PATRICK J. O’CONNOR, JR., BRUNER & O’CONNOR ON CONSTRUCTION LAW § 7:215 (West Group

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.