At our January CLE luncheon, attorney Daniel Day presented on
construction defect claims. He discussed when a defect claim can legally be
made and who would be potentially liable in various cases.
Mr. Day’s presentation focused on analyzing who would be
potentially liable for defects under various scenarios. For instance, among the
factors that would be critical to analyze would be whether there was personal
injury or damage to the property other than the construction itself. Absent
such injury, one would not be able to pursue a negligence action against the
contractor because the economic loss rule would be a valid defense.
If there was not personal injury or other damage, a valid
case might be pursued under a theory of breach of contract, breach of fiduciary
duties, intentional tort (such as fraud), or strict products liability,
depending on specific circumstances.
It is important for both builders and owners to understand
their rights and obligations before constructing a building so both parties
know what to expect. If you have been disappointed with the results of
construction or are having construction defect claims brought against you,
seeking legal advice and representation is the best step to ensure your rights
are protected.
