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When Is It a Mistake to Fix a Mistake?

Repairing construction defects can be risky unless you take some precautions

January 27, 2016
When contractors discover a defect in their work, repairing the defect can be risky unless you take some precautions

Contractors who discover a defect in their work find themselves between a rock and a hard place. They can ignore the problem and risk liability, or fix it and risk destroying evidence—also known as “spoliation.” If litigation develops down the road, contractors who destroy evidence, even with the best of intentions, can wind up paying damages as assessed by a court.

Unfortunately, there is no easy way to balance these competing interests. Defects that compromise a building’s structural integrity can cause injuries and property loss. Construction errors also result in delays that tend to roll downhill, throwing subcontractors off schedule and jeopardizing the entire project. In many cases, it’s also impossible to track down the exact party responsible for the defect. Equally problematic, the subcontractor at fault may not be trustworthy or skilled enough to remedy the defect.

Spoliation issues can arise even when contractors make good-faith repairs. Whenever evidence is destroyed, courts consider a number of factors to determine whether a contractor should be penalized for making a repair.

Intent. The court’s primary concern is the contractor’s intent. Did the contractor act specifically to destroy evidence, or was the spoliation necessary to prevent harm and address safety concerns on the jobsite?

Notice. Contractors who properly notify owners, potentially responsible parties, and other involved persons before acting generally fare better than those who don’t.

Injury to the case. Courts try to determine just how much the spoliation may have hurt the case. If other evidence exists that provides insight regarding the defect, it lessens the effect of the spoliation.

Protect Yourself

You may not be able to avoid spoliation claims, but the following steps could reduce your exposure and minimize the loss of evidence if litigation later develops. 

  1. Gather information. When a defect is discovered, gather information about the parties who may have caused the problem.
  2. Notify responsible parties. Prior to repair, notify all subcontractors who may be responsible and give each an opportunity to inspect the defect and assemble evidence, such as reports and photographs.
  3. Ask an expert. Contractors well-versed in litigation generally ask for an expert opinion regarding the defect.
  4. Announce the repair. When it’s time to make repairs, notify all parties involved by return receipt so you can show that you provided notice. Include the name, address, and contact number for the parties making the repair, as well as the date the work is scheduled to commence.
  5. Allow for supervision. Every potentially responsible party should have a chance to supervise the repair.

Alexander Barthet, a Board Certified Construction Attorney, manages The Barthet Firm, an 11-lawyer construction law firm in Miami, and maintains construction law blog.

This article is for informational purposes only and is not legal advice. Consult your own lawyer, as laws may have changed or be interpreted differently depending on the facts of your specific situation.

About the Author



Can you provide examples of the kinds of defects, where it might be problematic to make a repair?  We must be talking about the kind of defect, which cannot be completely corrected by the repair, or there would be nothing left to litigate.  In order for this article to provide a clearer understanding of the potential dangers to a well-meaning contractor, I think some clarification would be helpful.

Keep in mind that repairs are not always 100% effective. Repairs that are intended to remedy "punch-list" items, or defects and/or deficiencies pointed out by clients can be particularly problematic, requiring solutions that are acceptable to the client while still allowing the possibility of future litigation if, in fact, there are problems arising from the original defect/deficiency that are unknown to the client at sign-off. 

So ... document before and after any "fixes", seek client approval and sign-off, but know that, in this litigious world, you may be forced to revisit your actions and motivations in the name of spoliation. 

This seems like good advice for documenting any defect and attempting to remediate. However, despite not being familiar with the term "spoliation" a quick search and a little reading shows that most cases of spoliation are the fault of 'customers' not giving contractors ample notice or time to repair a problem and then fixing it themselves (or hiring another contractor to do so) and NOT from contractors trying to fix a defect in good faith. This brief article by Alexander Barthet gives no distinction there and no example of how it might work the other way around. This leaves many of us wondering what exactly he is talking about. I understand that the title was meant to draw us in, but he did not answer the question posed in it. So, while I appreciate the fact that it got me to dig further, the article itself leaves much to be desired and I agree with Frank Hall that clarification is necessary.

Ray, your criticism is fair. As lawyers, we sometimes take for granted that not everyone else deals in these issues.

I agree that in most instances, the contractors is using spoliation as a shield against the owner when a claim is brought. However, the purpose of the article was to inform contractors about the concept and the key considerations when performing repair work that could result in litigation. As my responses to the prior comments state, notice and documentation are the keys to protecting yourself.

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