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By: Steve Whalen

April 28, 2021

As a general overview, a construction defect is any component of a structure or its systems that do not perform as intended. A construction defect can occur in many forms and variations and can originate in the design phase, construction phase, or post construction occupancy. Construction defects can manifest into many issues, including increased construction costs, injuries to workers or pedestrians, and failure of building materials. In most cases, the source of construction defects can be recognized, and responsibility identified. For the interest of this article, we will focus on the responsibilities of a design professional and building owner, and how each can play a critical part in construction defects.

Design professionals, including Architects and Engineers, have a considerable degree of liability on a construction project. Design professionals are to be engaged in all phases of a construction project and their responsibility exists on many levels, including the preparation of a design program and construction administration services, to name a few. Most construction projects are based on the drawings and specifications prepared by a design professional that methodically inform the contractor what to build and the type and quality of the materials to use. The design professional also typically remains closely involved during the course of construction to ensure that a project is built in accordance with their drawings and specifications, as well as to serve as the representative to the Owner.

When design professionals fail to exercise reasonable care and judgment in performing his or her duties in any phase of their contract, they can be liable for resulting construction defects during, as well as after the completed construction. When a system is improperly designed or represented on the plans and specifications as required to comply with building codes, defects are nearly inevitable. Improper design strategies by the design professional can lead to defects and delays in the construction progress and increased job costs.

During the course of construction, design professionals may also be liable for failing to discover defects that could have been detected through their progress inspections. It is important for the design professional to perform thorough progress inspections to ensure that the completed work meets their specifications and the industry standards. Ultimately, the design professional is required to sign off on the project with the appropriate governing agencies.

Sullivan Engineering recently encountered an example of a defect that was overlooked by a design professional. We were retained to prepare contract documents to replace an existing roofing system that was improperly designed and did not meet current energy codes. Due to improper installation and poor details, the 2 year old roofing system was in failure and open to water infiltration. The Owner was forced to proceed with replacing the roofing system due to premature failure.

A separate hypothetical example of a defect may be the result of a miscalculation of load bearing weight, which can lead to structural overload and failure. The design professional will be responsible for any defects which may arise from improper design methods and its consequences. Consider that any structural related responsibility has consequences that are life safety requirements.

We discussed some of a design professional’s responsibility pertaining to defects; however, though it may seem unlikely to some, building owners also share some responsibility for defects. Owners may consider themselves exempt from liability caused by construction defects or failures; their view may be that the design professional is contracted to produce plans and specifications for the Owner’s purpose and the Contractor is responsible to build the project in accordance with those plans and specifications. It is the responsibility of an owner to clearly and accurately provide to design professionals; the Owner who does not report known hidden conditions can be held responsible for that information in the event that it resulted in defects.

In addition, An owner has a responsibility duty to maintain finished construction to prevent defects that might result from neglect deferred maintenance may lead to premature material or system failures.

Another recent condition that we encountered while conducting an investigation was an expansion joint failure at the sidewalk level over a vaulted space. The expansion joints were never maintained or repaired, thus resulting in ongoing water infiltration and concrete deterioration that caused the formation of cracks and spalls. The implementation of a regular maintenance and repair program could have prevented premature failures in the concrete structure below.

Construction defects can impact active construction or completed projects in many ways. They can lead to unsafe conditions, finger-pointing among the Client, Contractor and Designer of Record as well as costly repairs.  It is best to identify defects early. If the Engineer/Architect is proactive in progress inspections and the Contractor(s) is proactive to communicate field conditions and transparency in the process, there is a greater chance the construction effort will overcome large project-wide failures.

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