Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Introduction to Tort Law:

Importance and Definition

 Tort law refers to civil rights and obligations

imposed by society through statutes,
regulations, and case law.

 NOT by contracts between the parties.

 Different from criminal law, but sometimes

related.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Functions of Tort Law

 Compensating accident victims.

 Deterring unsafe or uneconomic behavior.

 Punishing wrongful conduct.

 Protecting or enforcing social norms.

 Providing a dispute resolution mechanism.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Classifications in Tort Law

 Interests that may be protected:

 Personal interests;
 Property interests;
 Economic interests.
 Types of conduct that may result in loss:
 Intentional conduct;
 Negligent conduct;
 Nonculpable conduct.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Factors Affecting Tort Liability

 Tort law is underpinned by a range of societal
policy choices, including the following
considerations:
 Recognized need for compensation.
 Historical development and case law.
 The moral aspects of the conduct in question.
 Administrative burden (on the legal system as a
whole) of recognizing a legal right.
 Capacity of each party to bear or spread the loss.
 The extent to which liability will prevent future
harm.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Tort Claims in Construction

 Common tort claims in construction include:

 Negligence;
 Misrepresentation;
 Interference with contract or prospective
advantage;
 Premises liability;
 Liability for hirer of independent contractor;
 Products liability.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Negligence: 4 Required Elements

 D owes a duty to P to conform to a certain
standard of conduct in order to protect P from
an unreasonable risk of harm.
 D did not conform to this standard of conduct.
 Reasonably close causal connection exists
between the conduct of D and the injury to P.
 D invaded a legally protected interest of P.

 D = Defendant; P = Plaintiff.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Elements of Negligence:
Standard of Conduct
 Objective reasonable person standard.
 Exceptions and standards for certain sub-
communities.
 Architects and engineers are held to standards for
their profession, higher than for society as a whole.
 In determining the standard of conduct, balance
the magnitude of the risk with the utility of the
conduct and the burden of eliminating the risk.
 Negligence per se and violation of statutes and
regulations.
 Jury determination.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Elements of Negligence: Duty

 Duty to exercise reasonable care when the
actor’s conduct creates a risk of physical
harm.
 Judge determination.
 Limits:
 Foreseeability;
 Doctrine of premises liability;
 Limited hirer liability for independent
contractors;
 Economic loss rule.
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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Elements of Negligence: Causation

 The conduct at issue must be a substantial

cause of the injury.

 “Conduct is a factual cause of harm when the

harm would not have occurred absent the
conduct.”

 Also known as “but-for” causation, “cause in

fact,” and “factual cause.”

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Elements of Negligence:
Protected Interests

 Most legal protection for physical harms and

harms to property.

 Less protection for economic harms.

 Least protection for emotional distress and

psychic harms (noneconomic losses).

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Defenses to a Negligence Claim

 Assumption of the Risk

 Express
 Implied

 Contributory Negligence

 Comparative Negligence

 Possible government immunity

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Next Possible Tort Claim:

Misrepresentation
 Key concepts:
 Intentional vs. negligent conduct;
 Opinions vs. representations;
 Reasonable reliance;
 Material or substantial representations;
 Complicated issues in third-party liability for
misrepresentation.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Interference with Contract or

Prospective Advantage

 Example: a claim may arise if the owner

terminates a contract with a contractor upon
the advice of the architect.

 Claim: contractor claims that the architect

interferes with the contract between the
owner and the contractor.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Premises Liability: Duty of the

Possessor of Land
 Traditional rule varied the duty based on who
comes onto land:
 Passersby;
 Trespassing adults;
 Trespassing children;
 Licensees;
 Invitees.
 Modern rule: possessor of land must avoid
unreasonable risk of harm to all who enter on
land.
 Defenses: Patent defects, scope of invitation,
recreational use, superior knowledge.
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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Employment of Independent
Contractors

 Evolution of the independent contractor rule.

 Policy considerations in the construction field

(very specialized and inherently dangerous
activities).

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Products Liability

 Defective equipment or materials.

 Strict liability versus liability for negligence.

 Modern (Third Restatement) approach.

 Defenses: reasonable foreseeability of the

harm, sophisticated users, economic loss rule.
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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Tort Remedies
 Compensatory damages:
 Economic and some noneconomic losses;
 Pain and suffering versus emotional distress.
 Punitive damages:
 For intentional, deliberate, almost criminal
conduct;
 Deterrence function;
 Judicial limits on excessiveness of punitive
damages.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

The Economic Loss Rule

 Concerns about consequences of allowing
liability for all claims for purely economic loss.
 Rule bars recovery of solely economic losses
under a theory of non-intentional tort.
 Historical development and case law
examples:
 Seely v. White Motor Co.
 East River Steamship Corp. v. Transmerical
Delaval, Inc.
 Application of the rule varies by jurisdiction.
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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

Summary
 Tort law is different from, but sometimes
related to criminal law and contract law.
 Tort law is underpinned by a series of policy
decisions involving how society wants to
allocate duties and liability between various
actors.
 The pure economic loss rule has become very
important for defining the limits of tort liability
in the construction industry.

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Construction Law for Design Professionals, Construction Managers, and Contractors Sweet and Schneier

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