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Construction Case Law Summaries
Contractor Liability

July 2011

PUBLISHED BY: CCL CONSTRUCTION CONSULTANTS, INC. AT SMASHWORDS
COPYRIGHT 2011 BY CCL CONSTRUCTION CONSULTANTS, INC.

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In July’s Contractor Liability cases:

• Development of a traffic control plan for a construction site requires professional skill and judgment.

• A homeowner that acknowledges in the contract the possibility that an unexpected site condition may not permit the original performance is not entitled to damages for the contractor’s eventual inability to conform to the contract.

• An owner’s personal knowledge of construction defects in its home, but has no other knowledge or experience in construction does not quality as an expert.

• An owner that referred to itself as “the general contractor” did not lose the protection of New Jersey’s Contractor’s Registration Act.

• The permissible aggregate work volume defined under New Jersey statutes for contractors bidding school projects applies to both general contractors and subcontractors.

• A contractor has no duty to arrange meetings between its supplier and the owner’s engineer to negotiate changes in the owner’s design to permit use of the supplier’s products.

• A contractor did not waive its requirement that a supplier’s submittal must be approved by the owner after multiple communications among a supplier, contractor, and owner’s engineer informed the supplier why its product did not meet the owner’s design requirements.

• A contractor must calculate set-offs of outstanding payments to a subcontractor against the subcontractor’s defective work on a contract-by-contract basis.

• Subcontractor funds held by a general contractor are first used to pay the subcontractor’s supplier’s claims and not to pay a bank’s security interest in the subcontractor’s accounts receivables.

• An owner is entitled to retain certain rights in its bid solicitation if the reservations are explicitly listed on the bid invitation.

• Contractor not responsible for flooding caused by soil conditions and lot selection when both were called out in an addendum to a construction and purchase agreement.

• A contractor that performs according to its contract is not liable to the owner for the injury to another contractor’s workers.

Development of a traffic control plan for a construction site requires professional skill and judgment.
In Hamilton-King v. HNTB Georgia, Inc., 2011 Ga. App. LEXIS 677 (Ga. Ct. App. July 14, 2011), a Georgia appellate court ruled that a claim based upon professional negligence required admissible expert testimony to establish the standard of care and to survive a motion for summary judgment. Lakeisha Hamilton-King and her brothers were involved in an automobile accident at night in a bridge construction zone. Shortly after the accident, the Lakeisha-King and her brothers exited their vehicle and were struck by another vehicle which led to injuries and one fatality. The Lakeisha-King and her brothers filed a negligence action claim against the general contractor of the project. The plaintiffs alleged that their injuries were caused wholly or in part by a lack of proper lighting and signage leading up to the construction area. In support of its negligence claim, the plaintiffs relied upon the testimony of two professional engineers who testified that the construction area required additional lighting and signage. The contractor moved to exclude the expert’s testimony and challenged the witness’s qualifications and opinions. The contractor asserted that the plaintiff’s claim against it was for professional negligence and that there was no admissible evidence of the standard of care or breach. The trial court accepted the contractor’s argument that the expert’s testimony was inadmissible since the experts were not qualified and provided contradictory testimonies. Without an expert’s testimony to establish the standard of care, the evidence was insufficient to create an issue of material fact and support a professional negligence claim. The plaintiffs argued that the contractor breached its duty to exercise reasonable care by its failure to develop a traffic control plan pursuant to the project’s contract. The plaintiffs further asserted that they did not bring a professional negligence claim but instead a simple negligence claim; and that the credibility of the expert witness should have been left for the jury to determine. Generally, if the claim of negligence relied upon the existence of a professional decision and involved the exercise of professional skill, the claim was based upon a claim of professional malpractice. In this case, the development of a traffic control plan was not an administrative or clerical routine which demanded no special expertise. The allegations of negligence against the contractor involved the exercise of professional skill and judgment. The plaintiffs’ claim was based upon professional malpractice and admissible evidence was required to establish the standard of care or breach. The trial court correctly granted summary judgment in favor of the contractor.