construction litigationIntroduction:

Whenever commercial construction takes place, the risk of an accident exists. With respect to accidents, investigations must occur, and “[d]evelopers, owners, tenants, general contractors, construction managers, subcontractors, and even insurance brokers and carriers each have a significant financial stake in the aftermath of a construction accident.” John Sparling, “Managing Risk in Construction Accidents: Why Your Investigation is Key,” The New Jersey Law Journal, Apr. 24, 2017, available at http://www.njlawjournal.com/id=1202784386708/Managing-Risk-in-Construction-Accidents-Why-Your-Investigation-is-Key?slreturn=20170403080340 (last visited May 3, 2017). This article examines construction accidents and when and how to best investigate them for litigation-related purposes.

Discussion:

There are several components to a good investigation and many reasons why a good investigation is important. The primary reason may be that when a lawsuit is filed, it is important for every party to have preserved the evidence to the greatest extent possible and conducted a thorough investigation, so that each side can bolster its theories for a particular case.

The best time to investigate an accident is immediately after one occurs. Construction and accident reconstruction expert witnesses can play a critical role in this investigation, as can engineers, who can determine what exactly went wrong as well as why and how to apportion the blame, if any. One legal analyst explains the import of early investigations:  “Because the accident scene is often controlled by the parties ultimately liable in a lawsuit, the failure to conduct an immediate investigation is often a critical lost opportunity. Maximizing the investment required in an investigation, coordinating among the parties and a third-party investigation firm, becomes the paramount concern. The benefits of an immediate post-accident investigation outweigh the cost of the professional investigator and counsel on special higher risk accidents.” Id.

One important factor to consider is what is meant by an “immediate” investigation.  According to one analyst, investigations should occur as soon as the ground is broken on a given construction project, and if it cannot occur then, then it should occur once an accident takes place and the area can be secured. See id. Specifically, “Preparation should begin before ground is broken on a project. A construction litigation team is often assigned to all of the cases and accident investigations for a given construction project in order to maintain a library of documents throughout the course of the project, minimizing costs and expediting interactions with the project team. A thorough project review should be conducted, including the scope of the project, contracts and coverage documents related to enrollment, in advance of the ground breaking.” Id. In other words, developers and other prospective litigants on all sides should retain an expert team to document certain aspects and consider the risk of accidents before the construction begins, if at all possible. This team of experts should review the proposed project to determine in advance if a particular engineering or other defect or neglect might lead to a potential accident, and that team can then minimize the risk of an accident ever occurring, thus vitiating the need for post-accident litigation. See id. As one legal publication explains, “Particular pre-task planning, training, contract revisions and orientation can then be suggested following the initial review to minimize risk and exposure. It is beneficial to conduct project team training on accident investigation, labor law and good practices, and refreshers as needed. Good preparation starts with assembling a good team with a designated third-party investigator, designated on-site medical personnel, designated counsel, as well as construction project personnel.” Id.

In addition, project managers and others should involve attorneys at the earliest possible stages, and attorney and expert teams should be consulted prior to ground-breaking of a given project. See id. There are a number of benefits to having attorneys and their teams involved in the earlier stages. In fact, “In addition to confidentiality, there are ancillary benefits to attorney involvement in construction accident investigations. For example, attorneys are in a better position to identify and assess information that will be relevant to the case. With an eye toward the prima facie elements of the potential claim, attorneys can seek certain evidence that may be overlooked. Regardless of whether the information is beneficial or damaging to the insured, relevant evidence can be used to assess the value of the case at an early stage and before incurring substantial costs. Additionally, the direct involvement of an attorney at the construction accident investigation will minimize the risk of spoliation of evidence.” Id

Savvy attorneys know to retain experts early, and retaining them at the consulting stages can clearly save any litigant a lot of hassle if and when construction-related accidents occur. In particular, “One of the most critical items of the investigation is the immediate determination of other available coverage from un-enrolled or potentially responsible parties or scopes of work. Expert consultants can be engaged to assist in the early analysis and investigation, depending on the accident scenario. Once all critical statements from witnesses, photographs or videotapes at the scene are obtained, a privileged counsel report is prepared the same day, attaching all the evidence.” Id.  Accordingly, attorneys who work with accident reconstruction specialists, general construction experts, engineering witnesses, and the like will be of great benefit to any litigants, prospective or actual.

Conducting a poor investigation has many ramifications, none of which are good. As one legal commentator explains, “After being involved in over a thousand construction accident investigations over the course of the last 25 years, I have seen every type of accident investigation failure play out in litigation. Typical examples include: 1) the failure to secure timely witness statements enables the case to be orchestrated after the fact to a liability scenario; 2) an accident is not thoroughly investigated at the time but then, later, the case is developed by the plaintiff’s counsel and a suit is filed years after, on the cusp of the statute of limitations, when it is too late to catch up; 3) an accident report inadvertently targets an enrolled trade, essentially sealing liability; 4) evidence is not immediately preserved and prevents an expert from determining that the safety devices were indeed providing proper protection; 5) records or project team statements are not developed and preserved, and then memories have faded and key evidence is gone when the suit is ultimately filed; and 6) photos of the scene are not taken, which would have shown the negligence of the plaintiff in causing his own accident. There are simply too many ways in which the failure to properly investigate accidents can lead to a very poor litigation result.” Id.

Conclusion: Construction litigation is highly technical, and winning or losing often turns on very subtle, nuanced, and seemingly minor facts. See id. Accordingly, attorneys and the “technicians” or expert witnesses should be involved in trying to prevent, document, and investigate accidents as early as possible. If these guidelines are followed properly, all sides will be in better shape, and prospective litigants will be well-armed with expert theories and substantial documentation if and when their cases come up for trial.