CONSTRUCTION CASE
LAW SUMMARIES
Designer
Liability
Spring 2011
PUBLISHED BY: CCL CONSTRUCTION CONSULTANTS, INC. AT SMASHWORDS
COPYRIGHT 2011 BY CCL CONSTRUCTION CONSULTANTS, INC.
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Construction Case Law
Summaries
Spring
2011
In this Spring 2011 Designer Liability cases:
Certificate of merit is required with the first complaint of negligence against a licensed professional in Texas.
The New Jersey statute of repose only applies if improvements to real property result in a defective and “unsafe” condition.
Project engineer not responsible for contractor’s compliance with laws and regulations.
Texas certificate of merit requires only one negligent act to be identified for a lawsuit to proceed.
The expert offering a certificate of merit in Texas must have knowledge, skill, experience, and training that relates to the specific professional negligence issue in its claim.
The Arkansas statute of repose may not be extended by contract.
An owner is not protected by the statute of repose for claims against a designer or contractor when the injury is caused by ongoing dangerous conditions.
Damages cannot be granted when copyright infringement commenced before registration but after publication.
Development of a traffic control plan for a construction site requires professional skill and judgment.
Certificate of merit is
required with the first complaint of negligence against a licensed
professional in Texas.
In
Pakal Enterprises v.
Lesak Enterprises LLC,
2011 Tex. App. LEXIS 3202 (Tex. App. Houston 1st Dist. Apr. 28,
2011), a contractor had hired a surveyor to perform a survey of the
property for a construction project. The survey provided by the
surveyor was inaccurate. Due to the inaccurate survey, the contractor
was required to make corrections to the construction and incur
additional expenses. The contractor and owner sued the surveyor. The
original petition was filed by the contractor and asserted claims of
negligence, negligent misrepresentation, and breach of contract. The
petition filed by the contractor failed to include a certificate of
merit which was required under section 150.002 of the Texas Civil
Practice and Remedies Code. The contractor amended the petition using
the correct business title of the surveyor approximately three months
after the initial petition. The amended petition was also without a
certificate of merit. The contractor argued that the certificate was
not required due to an exception under the statute that permitted an
extension when the statute of limitation would expire within ten days
of the amended petition. The surveyor argued that the statute
required the contractor to file a certificate of merit with the first
petition. The contractor argued that the statute’s exception was
applicable since the amended complaint was filed within ten days of
the expiration of the limitation period. However, the language of the
statute explicitly stated that the first petition must be accompanied
with a certificate. The first petition filed was the original
complaint and not the amended version. Since the original petition
qualified as the beginning of the lawsuit, the petition was not filed
within ten days of the expiration of the statute of limitations. The
statute’s exception was not applicable. The contractor’s claim
against the surveyor was correctly dismissed by the trial court.