Construction Defects

Engineers and other professionals may be liable for negligence for the design and preparation of structures and improvements to property. These professionals must exercise a duty of care and skill that is ordinarily employed by their profession under similar conditions and like circumstances. In applying this principle, a contracting architect or engineer may be liable for injuries caused to patrons for defects that are reasonably foreseeable or that are inherently dangerous. However, if the professional does not hold himself out to be an expert in the design of the type work done, performs the work without negligence, and the work is accepted by the owner, the professional is generally not liable for injuries stemming from a defective design. An architect or engineer supervising a construction project may be liable for injuries when that professional has expressly or impliedly assumed control over the site’s supervision or safety.

Building contractors may also be liable. Building contractors must exercise the degree of care and skill that is ordinarily employed by other contractors under similar conditions and circumstances. In other words, there must be evidence of universal custom or practice. Generally, when a landowner hands over control of a portion of land to an independent contractor, the owner is relieved of his duties for that portion of land. However, if the owner accepts the work upon completion, the owner may be liable for the negligence of the contractor. This does not mean that the independent contractor will necessarily be able to escape liability. Negligence that is inherently dangerous or a defect that is not readily observable upon a reasonable inspection may provide a cause of action against the contractor. Additionally, where a general contractor is in control of the property, that contractor is considered to be an occupier. This means the general contractor has the same responsibility to invitees and others as the owner of the property would. When complete control is given to a general contractor, it may be necessary for the contractor to constantly monitor the site for risks of danger to others or to put in place barriers to prevent others from entering dangerous areas.

A plaintiff who wins at trial may be awarded different types of damages. Damages are generally broken into two categories: special and general. Special damages are typically readily measured losses to the plaintiff, such as medical bills, lost profits, and loss of employment. The plaintiff must plead these losses fully and specifically. If someone has died because of contractor’s negligence, a plaintiff may be able to seek recovery for the wrongful death of his or her decedent. The measure of a wrongful death recovery is the full value of the life of the decedent, which includes both economic and an intangible elements. Punitive damages may also be available.

For personal injury actions, the general rule is that a plaintiff must file suit within two years of the injury. However, when there is a problem with the construction of real estate improvements, a personal injury or wrongful death claim must be brought at some point before the expiration of eight years after the project was finished.

In defending a construction defect suit, a defendant may have many options. It is important to remember that everyone who ventures onto someone else’s property must generally exercise ordinary care for their own safety. Unless the alleged defect is an inherently dangerous condition, the question becomes whether the plaintiff exercised the prudence of an ordinarily careful person in a similar situation.

A plaintiff may also be barred from recovery if he assumed the risk of his injury. Assumption of the risk occurs when a plaintiff, with full appreciation of danger and without coercion, deliberately chooses an obviously perilous course of conduct. When a plaintiff has encountered a dangerous condition on a previous occasion and is later injured by it, the plaintiff generally cannot recover because he is presumed to have knowledge of that defect.

The information provided above is a very general summary of the law governing civil liability for construction defects at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all state and federal courts in Georgia.