The Reality of Construction Defects Jerry Klipp, PE

When is a door not a door? Of course, when it’s a-jar. When is a construction defect not a defect? Perhaps, when it’s an error or omission. Unlike the childlike conundrum, there is no simple answer. A construction defect as defined in law by the California Jury Instructions is:

“Failure of the building or any building component to be erected in a reasonable workmanlike manner to perform in the manner intended by the manufacturer or reasonably expected by the buyer, which proximately causes damage to the structure.”

The definition of “defect” in Webster’s is:

“Lack of something necessary for completeness.”

Now, one would think that with the above information at hand, that construction defects would be easy to recognize and resolve; so why not?

Attorneys rely upon professional architectural, structural, mechanical, electrical, civil, geotech and other forensic experts to identify the construction defects for a designated structure, e.g., residential, commercial, industrial, institutional, etc. The goal of the expert is to provide a complete and objective set of opinions for his or her client. However, two or more experts can observe and/or inspect a singular defect and be directly contradictory in their opinions. Conformance to building codes, adherence to manufacturer’s recommendations, and analysis of causes and resultant damages are seldom the vehicles that finally resolve the issues.

It is well to differentiate between construction defects (CD) and errors and omissions (E&O), the latter generally referring to professional liability. During the design phase of a project, the professional may indicate the wrong size or type of equipment, and/or omit a system component. This action is considered an error or omission, but is certainly not a CD until the Contractor commits to the design document and installs it as shown without any corrective measures. It is then incumbent upon counsel to demonstrate actual responsibility for the CD. Now that it is a CD, is it also an E&O? Historical experience does not always provide this answer. In litigation, often all system-related problems are initially categorized as CDs which only complicates the analytical process for the expert. Both the designer and contractor have responsibilities for shop drawing and submittal review, which tends to drive a case toward some form of joint responsibility.

For instance, consider a complaint where an owner complains of leakage from a copper domestic water pipe. This may be attributable to excessive erosion from:

• Wrong size pipe indicated on design drawing (E&O)
• Wrong size pipe installed in building (CD)

The Contractor’s expert is likely to conclude that excessive water velocity in the pipe caused the pipe failure and resulted from improper pipe sizing by the designer. In contrast, the Design Engineer’s expert may well state that the size is correct because the velocity conforms to a specific code or standard; moreover, the pipe leak failure is due to improper pipe joint installation.

The aforementioned submittal process is especially perilous for both builder and designer. We have seen many instances where the die is cast as at that stage of the project, from the standpoint of relative responsibility between parties. We’ll follow with some examples in a future post.


-Jerry
Jerry Klipp is a Senior Mechanical & Electrical Engineer at CTG Forensics

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