Masonry Magazine October 2002 Page. 45
The preparation of plans and specifications is a critical responsibility of architects. If an architect fails in preparing the plans and the resulting failure is a structural collapse, the injured persons may assert a negligence claim against the architect, even where the injured party had no contract with the architect.
Privity of contract is not required in a negligence claim, as the duty to exercise reasonable care extends not only to those with whom an individual contracts, but also to those persons for whom injury is reasonably foreseeable. Increasingly, however, when disputing parties have a contract between them, courts are resolving the dispute by reference to the contract terms, and declining to litigate the negligence claim.
Unlike most contract claims, however, negligence claims generally require expert testimony to establish the "standard of care" applicable to the defendant. Thus, in the architect example above, the plaintiff typically would have to present expert testimony to establish the obligations of an architect and demonstrate that, in this particular case, the architect breached that duty in a specific manner causing injury.
Negligence per se
Where a defendant violates a statute, code or regulation, a claim for "negligence per se" may arise. Where such violations occur, a plaintiff is generally relieved of the burden of providing expert testimony as to the standard of care and the defendant may be deemed negligent if the injured person is the type of individual intended to be protected by the statute, code or regulation. In short, this is an easier claim to prove than the general negligence claim discussed above. As applied to the construction industry, negligence per se may arise where a contractor or architect violates a building code and injury or damage occurs.
Fraud
Fraud-related claims also arise in construction-related disputes, but the quantity and quality of proof is far more demanding than for a contract or negligence claim. Typically, fraud requires proof that one party possessed an intent to defraud another person, and that the injured party relied to his or her own detriment upon the fraudulent statement. Many courts disfavor fraud claims and impose rigorous pleading and evidentiary requirements at trial. In essence, a person claiming fraud must allege and prove greater detail as to the "who, what, where, when and how" of the fraud claim.
A related but less difficult claim to prove is negligent misrepresentation. Again, the claim requires proof that the defendant had a duty to disclose some important information, yet failed to do so, causing injury or damage.
For example, an engineering firm that fails to conduct standard tests to determine the subsurface conditions of a construction site, may be liable for negligent misrepresentation to the extent it fails to reveal its lack of testing, and the subsurface later cannot support the loads suggested by the engineer's report.
Unfair trade
In recent years, a growing number of states have adopted statutes to protect consumers and businesses from certain unfair trade practices. These statutes cover a broad spectrum of dealings and transactions and are liberally construed by many courts. Unlike contract and negligence claims, however, the damages recoverable in some states can be double or triple the actual loss. In addition, the winner often gets to recover attorney's fees. Recently, a Virginia jury awarded a homeowner over $1.2 million where the builder allegedly sold a $500,000 house, advertising that the building was clad in stucco, when in fact the exterior was EIFS.
Not every claim outlined here can be asserted in every dispute. Much depends on the nature of the parties to the dispute, and whether or not their conflict arises by virtue of a contractual dispute. In the end, the facts and applicable law will determine the success of the claim.
Warren Lutz, Esq., is a director with the Washington, D.C., law firm of Jackson & Campbell, P.C. He specializes in product liability, toxic torts, and construction litigation. He may be reached at wlutz@jackscamp.com.
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October 2002
Masonry 43