The following specification exists in a construction contract between Kevin Construction and Oliver Owner:  e.  Install drainage course on horizontal and vertical surfaces in...

  1.      The following specification exists in a construction contract between Kevin Construction and Oliver Owner:  e.  Install drainage course on horizontal and vertical surfaces in accordance with the manufacturer’s recommendations.      

After completion of the project, a storm hits the area and the drainage course does not handle the runoff and leaks occur which damage the ceiling and flooring tiles in the amount of $10,000.  The owner makes a claim against the contractor for those damages, claiming the contractor did not install the drainage course per the manufacturer’s recommendations.  The owner argues that any decent contractor would have installed the drainage course properly or would be required to pay for the damages.  The drainage course extended for approximately 137 feet.  Two screws were found to be missing in the installation.  All other claims by either party are contradictory and cannot be proved by a preponderance of the evidence.  Discuss. 

Asked on by tsekiteri

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pohnpei397 | College Teacher | (Level 3) Distinguished Educator

Posted on

In my view, this case turns entirely on technical details that are not provided in the question or that would be known only to someone with expertise in installing drainage courses.  The reason for this is that the case revolves entirely around the two screws that the contractor failed to install.  We need more detail to be able to understand the importance of those screws.

As I understand it, the only mistake that the contractor made (that could be proved by the owner) was failing to install the two screws.  Given this, we need to know at least three things about the screws and the installation in general before we can know whether Kevin Construction should be held liable.

First, we need to know how many screws were installed in the project as a whole.  If the drainage course was 137 feet long, it seems likely that there were hundreds of screws involved.  The more screws were installed, the less of a case the owner has because two screws out of (for example) 200 would not seem to be a particularly important omission.

That said, it would also be important to know about standards of care in the installation of such courses.  Is it fairly typical for a contractor to make this sort of mistake?  If the typical contractor would never omit that many screws in a job of this sort, it would be easier for the owner to claim negligence on the part of Kevin Construction.

Finally, we need to know something about the function that the screws were supposed to fulfill and where they were in relation to the leaks that damaged the building.  The mere fact that two screws were missing would not make any real difference unless the screws’ absence could be tied to the damage that occurred.  For example, if the two screws were right next to each other and left a two foot stretch where the drainage course did not hold tightly to the eaves, the owner likely has a case.  If the water that did the damage came through the gap in that two-foot stretch, we could conclude that the screws were the cause of the damage and the contractor should be held liable.  However, if the screws were, for example, simply holding on decorative pieces far from the site of the leak, the owner could not claim they caused the damage.

In these ways, we need to know more about where the screws were, how closely they were tied to the leaks, and whether a reasonably careful contractor could possibly have omitted them.  If we knew these facts, we would be able to determine the proper outcome of this case.

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