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Excerpted from Verdicts & Settlements
Verdicts & Settlements (front page), December 12, 1997

THE COMPOUND CONSEQUENCE OF ONE SMALL
DISCERNABLE LEAK INTO THE BUILDING ENVELOPE


By Michael Solender


The mechanics of most construction defects cases are compound, but nearly all start with just one small discernable leak into the building envelope. At this point in time, the developer or the general contractor is notified concerning the condition and he, in turn, notifies the appropriate sub-contractor who was responsible for the particular element of work. Typically, arrangements are now made for an appointment to repair the leak. After the repair is completed, the first rain may show that the attempted repair was not successful and the leaking condition still needs remediation, or worse yet, the leak is now manifesting itself in additional locations.

After two or three attempts are made to complete the repair, without total success, the homeowners' association discusses the matter with counsel, who correctly opines that a further investigation should be undertaken to look into the matter more thoroughly. After several unsuccessful attempts to fix the problem, the attorney is called in to write a letter to whomever might be believed to be responsible, but first the problem must be appropriately identified. In order to trace the source of the problem, various construction experts are brought in to perform some light invasive investigation into the building's basic components.

In nearly every case, further investigation into these issues discloses additional problems. Where water intrusion has occurred these often include varieties of fungi found to be living hidden within the damp wall cavities. These fungi can radiate their spores into the living areas. Unfortunately, some of these fungi are sometimes toxic and can cause serious and sometimes even fatal sickness to those who breathe in the spores, with the milder types of maladies often manifested by persistent flu-like symptoms and headaches. In fact, the more thorough the investigation, the more problems that may be found that have little or nothing to do with the original leak complaint.

Thus, a little leak from the rain in a single family residence or one or more units of a huge apartment or condominium complex, is all it takes to start litigation for a law suit that could involve millions of dollars in legal and expert witness fees, as well as millions of dollars for remediation of actually found code violations and construction defect problems, taking years to settle.

Parts of the building envelope are now unpeeled layer by layer like the stratum of an onion, in order to reveal the construction layer beneath. That is where it is discovered that what started out as a small leak is in fact the tip of a construction iceberg of disaster. Where only one leak was thought to exist, hundreds of minor leaks that are too small to manifest themselves out to the face of the interior plaster surface are found. While looking for those particular elements, numerous other construction anomalies are noticed, such as missing anchor bolts and other framing hardware, improper flashing and sheet metal work, as well a host of other miscellaneous construction defects. This information is then carefully recorded, appropriately photographed and documented for future reference. It is from this list of initially found defects, together with an analysis of the cost to remediate the conditions, that the initial lawsuit is developed. As from a tiny acorn a huge oak is bom, so often a huge construction defects case is conceived from a single small leak in the building envelope.

The root cause of those problems is often inefficient and or poorly trained construction personnel. This condition is further exacerbated by inefficient construction superintendents, who, if properly trained in the trades, are required by the developer to handle numerous other office procedural operations rather than watching every aspect of the day-to-day construction progress. Few, if any job notes are kept, and seldom are photographs taken of the working progress, largely because the superintendent is bogged down with routine office procedures that could be more properly handled by office personnel at a third of the cost.

With the partial demise or disappearance of the "residential" union construction worker, together with the union's training programs, the essential instruction to eventually graduate the worker to become a 'journeyman' (a technically skilled tradesman), has vanished. This has been replaced with the most casual of informal job training, often given by incompetent trainers. In days before, our high schools had numerous classes where construction trade practices were taught, but now, even should these courses be offered, this training is obsolete, with every high school student wanting to become a doctor, lawyer, computer expert or scientist, with few actually ever achieving their goals. We will always have a need for those professionals of course, but our greatest needs for tomorrow are for properly trained technical service personnel who know how to perform those essential services without which no technically oriented society can long survive.

The late longshoreman/author Eric Hoffer wrote that "a nation could be judged by the quality of its maintenance and service programs". Indeed, those countries who can't maintain and properly service their industrial plant are condemned to rely upon and purchase those maintenance services from others. There are certain oil-rich nations where the highways are lined with expensive newer automobiles, whose working parts have ground to a halt due to the lack of appropriate maintenance by competent service personnel. If our country is to avoid such a calamity, adequate job training procedures must again be implemented, such as those currently utilized by the Big Three Auto companies and by a number of the larger computer and photo copier companies for skilled service and maintenance personnel. The service industry is indeed a most important component, But first there must be the larger cadre of skilled construction specialty workers who can properly build the project from the ground up. Even when properly built, there may be litigation filed because of real or imagined construction defect, but at least most of the remediation will be relatively inexpensive because of the quality and correctness of the balance of the work.

Additionally, if the supervisory personnel who originally had the task of overseeing the construction of the building, took careful notes as well as properly documented photographs of the construction details as they were built, the cost of future invasive investigation would be cut to a minimum. Thus completely documenting the entire work effort on a construction site during the original development, may be the appropriate way of defending against potential future defects claims, if we are to diminish the high costs of investigating those alleged construction defects.

MORE ARTICLES:

- THE CONSTRUCTION-EXPERT INDUSTRY: NEW DEVELOPMENTS

- CONSTRUCTION EXPERT CAN BUILD, OR DESTROY, A CASE

- EXPERTS CAN RESOLVE THE CONSTRUCTION CONUNDRUM
   Standard Construction Seldom Is Really Standard

- IN CONSTRUCTION CASES, BEWARE THE HIRED GUN

- THE COMPOUND CONSEQUENCE OF ONE SMALL
   DISCERNABLE LEAK INTO THE BUILDING ENVELOPE

- THE PANDORA'S BOX OF WATER INTRUSION LITIGATION

- CONSTRUCTION DEFECTS:
  How To Avoid the 'Big Hit' And Costly Litigation

- BUILDING A REMEDY

- WATER TORTURE

- THE WATCHER
   A third party may be helpful in monitoring the expert when figuring
   the cost of repairs

- KNOW-HOW
   A general contractor should have knowledge in related
construction areas to be effective as an expert witness

- EXPERT EASE
  OPINION: Construction defect experts provide lists of failures in
  preparation for litigation, and counsel must verify reports for accuracy

- MAKE READY
  Properly prepared expert witnesses will save both time and money.

- ON THE WATCH

- THE NUMBERS


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