Construction Defects
Construction Defects: The Duty To Preserve Evidence Of The Defects
Amanda P. Baggett
August 21, 2013
Stop! Before you make those repairs, there are some things you should consider. Otherwise, you could find yourself down the road facing claims that your repairs destroyed evidence of the defects.
Florida courts have recognized the importance of preserving evidence of defects, and courts can impose sanctions against parties that fail to do so. These sanctions include: striking pleadings, entering defaults on the issue of liability, exclusion of expert testimony, the imposition of evidentiary presumptions and adverse inferences, and even dismissals of claims.
So just what is the scope and extent of the duty to preserve evidence of defects? There is no hard and fast answer, but Florida cases dealing generally with destruction of evidence claims reveal several important questions that you should consider prior to making repairs:
- Is the repair work immediately necessary to prevent further damage to the surrounding structure?
- Is the repair work immediately necessary to protect the health, safety, and welfare of the owner?
- Has the potential defendant been advised of the defect, including the exact nature of all possible claims?
- Has the potential defendant been advised as to the scope of repairs recommended by experts?
- Has the potential defendant been advised as to when the repair work will take place?
- Has the potential defendant been given the opportunity to perform an independent inspection of the site?
- Has the potential defendant been given the opportunity to be present during the time that the repair work is scheduled to be performed?
- Will the repair work necessarily destroy the evidence of the defective condition?
- If items of evidence will be necessarily destroyed or concealed in the repair process, how crucial is the evidence to the claimant’s intended claims?
- What alternate sources of information will be available for review and examination by the potential defendant’s experts after the repairs are completed?
- Will these alternate sources of information realistically provide an expert with a reasonable ability to evaluate issues relating to possible defenses (e.g., causation)?
So before you make repairs to defective conditions in your home or business, be sure you’ve considered these questions. Better yet, talk to an attorney that can help you preserve the evidence and prepare your claim against the responsible party.
The content of this article is intended to provide general information and as a guide to the subject matter only. Please contact an Advise & Consult, Inc. expert for advice on your specific circumstances.