Construction Law Primer
A Legal Moment

A Construction Law Primer

   Given the Number of Potential "Players" and Issues Involved, Lawsuits Involving Construction Problems Qualify as the Proverbial "Legal Battlefield"

   Construction defects can, and often do, quickly turn a building project into the proverbial legal battlefield whether you are the architect, contractor or developer being sued for an alleged defect, or the property owner or community association actually bringing the claim.

   The issues range from the sheer number of defendants potentially involved, to identifying the precise nature of the problem, to securing and preserving relevant evidence.

   Generally, construction defects can be classified into three categories:  improper design, defective building materials or faulty workmanship.  And therein lies the rub.  Because there may be different professionals involved in one or more of the categories –  none of whom wants to shoulder responsibility for the problem – construction litigation often entails much finger-pointing as to who is at fault with the potential result of many defendants and cross-defendants being brought into the suit.

   The developer, design professional, and contractor are all potentially responsible.  Historically, however, North Carolina courts have recognized that the various participants in the construction process are liable only for those defects that fall within their respective areas of expertise.  For example, a contractor who builds a structure according to the design supplied by the owner generally is not responsible for the adequacy of the design.

   In most cases, the plaintiff in a construction case will need to retain an independent expert.  Experts have the necessary training, education, and experience to give testimony in court as to the cause of a defect.  To take an easy example, if your roof leaks, you will quite likely call upon a roof expert whose “curriculum vitae” or resumé includes the fact that he or she has a depth of experience in designing and/or building roofs, and otherwise evaluated other defective roof systems.  Such a person would be in a good position to testify as to what is wrong with the plaintiff’s roof.   By contrast, a general or roofing contractor may be great at repairing a damaged roof, but he or she may not be the best person to act as an expert in the case, particularly if the problem lies with the original design rather than faulty material or workmanship.
   In addition to the problem of “finger-pointing” and finding the proper expert, another typical issue in construction cases is the evidence itself.  The defect may not be apparent or discovered immediately and, under North Carolina law, claims on construction defects may be filed against builders months or even years after completion of the project. This means that evidence can be difficult to track down, creating significant challenges to establishing or defending a claim.

   Generally, the measure of damages is the cost to correct, repair, or replace the defective building component.

   In a word, construction law is complex inasmuch as it can involve myriad parties who worked on the project – architects, contractors and sub-contractors – and sifting through detailed building plans and extensive local and state building codes.

   If you are involved in a construction defect claim, one of the most important steps you can take to secure your rights is to immediately contact an attorney experienced in construction law. Informed legal advice can help you understand all of your legal options and can make a tremendous difference in the outcome of your case.


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Clifford C. ("Kip") Marshall is a trial attorney with, and President of, Marshall, Roth & Gregory, PC.  Recognized as a "Best Lawyer" (Government Relations Practice) for the past four years, Kip's practice encompasses all forms of land and title litigation, commercial litigation and catastrophic injury.
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