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Comparative Fault in Construction Law Cases – Who is Liable?


Comparative fault is the idea that more than one person can be liable for an injury or a breach of some kind of duty. Just think of a car accident—if you run into someone, the person you ran into may have done something to contribute to the accident. If someone falls in your store, maybe you aren’t totally responsible—perhaps a cleaning company that didn’t display a sign warning people that the floor was wet, should bear some responsibility.

Juries can apportion liability between any number of Defendants, and the Plaintiff. The problem is that this apportionment of liability generally doesn’t apply to breach of contract actions. In the construction context, with construction contracts, this can create problems because there are so many different actors in the standard construction contract.

If a general contractor is sued for breach of contract, it would be helpful for the construction company to be able to allege that the owner of the property or a subcontractor did something to contribute to a delay, or to contribute to slipshod work.

Problems with Airport Construction

But last year, a Florida court did open the door to allow some measure of comparative fault in the context of a construction contract. The case involved a contractor hired to build a runway at Fort Lauderdale airport. Like many projects, this one also had builders, program managers, and inspectors involved.

But the runway, after it was built, because it was built poorly, eventually needed to be rebuilt, costing the county millions of dollars which it sought to recoup. The county’s damages were in excess of what it owed to the contractor, and it stopped paying the contractor, which turned around and sued the county.

The contractor said that some of the fault should be apportioned to the other companies involved in the project. The court agreed, and apportioned fault between the contractor, and to the other parties that worked on the project. The county appealed, saying that the trial court was not allowed to apportion or divide fault among the various parties as that is generally not permitted in breach of contract cases.

Court Allows Some Apportionment

But the appellate court disagreed, saying that the breach of contract action was really one that sounded in professional negligence. Much like a medical malpractice case against a doctor would be negligence, which would be able to be apportioned, so too was a claim that a contractor didn’t fulfill its duty of care.

The case does open the door to apportion liability between parties—but only as to “professionals,” where a breach of professional obligations may exist. For example, a standard subcontractor may not be considered a “professional” (in legal terms), and thus, a subcontractor may not be able to avoid liability by trying to pin some blame on other parties to the construction project.

Call our Fort Lauderdale construction attorneys at Sweeney Law P.A. at 954 440-3993 to help you if you are involved in a lawsuit involving construction or a construction project.

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