Contractors who discover construction defects or mistakes in their work face two challenges: ignore them and risk liability, or fix the problems and risk destroying evidence – also known as "spoliation." If litigation develops down the road, contractors that destroy evidence – even with the best of intentions – can wind up paying damages in court.
Repairing faults in construction work
Unfortunately, there is no easy way to balance the immediate need to repair against the equally important need to protect evidence. Construction defects create a host of complications. Despite a compelling need to preserve evidence of fault, ignoring a construction defect or mistake in the work can tempt disaster. Oversights that compromise a building's structural integrity can cause injuries and property loss. Errors also result in delays that tend to roll downhill, throwing subcontractors off schedule and jeopardizing the entire project. In many cases, it's also impossible for a contractor to track down the exact party responsible for the defect, and equally problematic, the subcontractor at fault may not be trustworthy or skilled enough to remedy the defect.
Spoliation of evidence
Spoliation issues can arise even when contractors make good faith repairs. When evidence is destroyed, courts consider a number of factors to determine whether a contractor should be penalized for making a repair.
The court's primary concern is the contractor's intent. The court considers whether the contractor acted specifically to destroy evidence, or whether the spoliation was necessary to prevent harm and address safety concerns on the job site.
Contractors who take time to properly notify owners, potentially responsible parties, and other involved persons before acting generally fare better than those who don't.
Injury to the Case
Courts try to determine just how much the spoliation may have hurt the case. If other evidence exists that provides insight regarding the defect, this lessens the effect of the spoliation.
How to protect yourself
When a defect is discovered, gather information about the parties who may have caused the problem. Prior to repair, immediately notify all subcontractors who might be responsible. Each subcontractor should have an opportunity to inspect the defect and assemble evidence, such as reports and photographs. Subcontractors well-versed in litigation might ask for an expert opinion regarding the defect.
When it's time to make repairs, notify all the parties involved and do so by return receipt so you can show that you provided notice. Include the name, address, and contact number for the subcontractor making the repair and the date the work is scheduled to commence. Every potentially responsible party should have a chance to supervise the repair. Taking these precautions can't always avoid spoliation claims, but they help minimize the loss of evidence should litigation develop later on
Alexander Barthet is a Miami-based construction attorney, Board Certified in Construction Law. He publishes regularly to his blog, TheLienZone.com.