By: Barry Dorans
I have received quite a few inquiries from clients about claims regarding potential defects in concrete. Since those claims follow the same general rules that apply to most construction claims, they are good illustrations of that area of law.
Typically the client, whether commercial or residential, has requested that concrete be poured either as the primary scope of work or a minor part of an overall construction project, such as decking around a pool. Sometime after the concrete is poured, cracks develop and an owner inquires as to whether they can bring a claim against the contractor. As in many areas of the law, the answer is “it depends”.
First, in general, a contractor is not liable unless there is a defect in the concrete and that defect arises as a result of a failure to follow the standard of care. As to the defects, surface cracks are not a defect in the concrete, but a natural occurrence because concrete shrinks as it dries. In many cases, contractors install control joints in regular intervals that cause the concrete to separate or crack at the control joint instead of in a place that is less aesthetically pleasing. In general, if the crack is small, it may not be considered a defect. What is small varies based on a number of factors and can range from 1/16 inch to nearly 1/4 inch. If the concrete cracks are much larger, that can be a sign that the contractor failed to comply with the standards of the industry in pouring the concrete. In particular, the concrete may have been too wet when placed or the temperature while the concrete cured may have been inappropriate or the contractor may have failed to take the appropriate steps to allow the concrete to dry gradually.
A second potential defect is where the concrete not only cracks, but becomes displaced vertically which can cause trip hazards or cause portions of the structure to move. While a vertical displacement is unquestionably a defect, the question is whether the owner can prove the contractor is liable for the defect. The fact that part of the slab may have gone up or down may be due to site conditions that the contractor is not responsible for. For example, if there were hidden conditions under the surface where the concrete was poured, that could cause the concrete to settle unevenly. In such a situation, a contractor would not be liable for that defect. On that other hand, if the contractor had been hired to put in fill before the concrete was poured and the contractor improperly compacted the fill and that caused the improper settlement, the contractor would be liable.
For issues concerning concrete defects, like many other construction defects, the first step is documenting what the current condition is. Photos, videos and onsite measurements are helpful. Next you should obtain an opinion of another expert in the field as to whether or not the condition observed is a defect, and if so, what is the cause and what is the cost to replace. Sometimes the third party expert will state that while the condition observed is a defect, these things happen even if the contractor does their job correctly. In such a case, the plaintiff will have a difficult time prevailing. In other cases, the third party expert can confirm that the contractor violated clearly established customs in the industry and that is what caused the defect. In those cases, the plaintiff would have a better opportunity to prevail.
If you have any questions concerning this or any construction related issues, please contact a lawyer who can assist.
