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DIRECTORY AND CAPABILITIES

Appeals Court Reverses Summary Judgment over Defective Archway Construction

February 10, 2012 — CDJ STAFF

A judge has ruled that a plaintiff can go forward with her suit that she was injured by a defective archway during a birthday party. A three-judge panel of the California Court of Appeals issued this ruling on January 23, 2012, in the case of Trujillo v. Cosio.



Ms. Trujillo attended a birthday party at the home of Maria Cosio and Joel Verduzco. A piñata was hung between a tree and a brick archway. Ms. Trujillo went to get candy that had fallen from the piñata, during which the archway fell on her hand. Subsequent examination of the archway showed that it had not been “properly anchored to the supporting pillars to protect the arch from falling.”



Ms. Cosio and Mr. Verduzco argued that they could not have been aware of the defective nature of the archway’s construction, as it had been built at the request of the prior property owner. The structure was constructed without building permits. Mark Burns, a civil engineer testifying for the plaintiff, said that “a reasonable property owner would have thoroughly tested the archway to ensure it was capable of withstanding such horizontal forces before allowing children to enter into the area.” Mr. Burns noted that twenty rope pulls would have been sufficient to demonstrate the structure’s instability.



The trial court rejected Mr. Burn’s statements, finding that the respondents did not have any knowledge of the defect and that a visual inspection should have sufficed. The court noted that this a triable issue, whether visual inspection suffices, or whether the property owners should have done as Mr. Burns suggested and yank a rope twenty times. The court noted that “although a jury may ultimately disagree with Burn’s opinion, it was supported by sufficient foundation and was not speculative.”



The opinion was written by Judge Flier, with Judges Rubin and Grimes concurring.

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ASCE Statement on Senate Passage of the Water Resources Development Act of 2024

August 12, 2024 — Marsia Geldert-Murphey, President of the American Society of Civil Engineers
WASHINGTON — The American Society of Civil Engineers (ASCE) commends the Senate for passing S. 4367, the Thomas R. Carper Water Resources Development Act (WRDA) of 2024. Both the House and Senate versions of WRDA will help improve America's ports and inland waterways, enhance flood risk management and storm risk reduction programs, and prioritize ecosystem restoration. ASCE now urges Congress to swiftly conference and pass a final WRDA bill in the upcoming months. The Senate version of WRDA includes key provisions that will help ensure the ongoing operation of America's inland waterways systems, which received a 'D+' on the 2021 Report Card for America's Infrastructure, including adjustments to the cost share requirements for rehabilitation projects that receive funding the Inland Waterways Trust Fund (IWTF). These changes will ensure the IWTF remains available for future projects to help reduce the backlog of inland waterways projects. This bill also creates a Levee Owners Advisory Board, which has the potential to improve communication between the U.S. Army Corps of Engineers, other federal agencies, and levee owners and operators. Now that the House and Senate have passed their versions of WRDA, we encourage lawmakers to include several provisions included in the House version in their final conference bill. This includes the reauthorization of the National Dam Safety Program through 2028, provisions that reduce restrictions on the amount of funds states can receive in National Dam Safety Program State Assistance Grants; improves access to the High Hazard Potential Dam Rehabilitation Grant Program; and requires the incorporation of low-head dams into the National Inventory of Dams, and an extension of the National Levee Safety program through 2033. ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS Founded in 1852, the American Society of Civil Engineers represents more than 160,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel. Read the court decision
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That’s not the way we’ve always done it! (Why you should update your office practices)

April 15, 2014 — Melissa Dewey Brumback – Construction Law in North Carolina
Anyone recognize the photo to the left [Photo of Pay Phone]? If you are of the Millennial generation, this is a quaint thing called a public pay phone. They used to be everywhere. Imagine, not having a cell phone to keep you in constant contact with Big Brother…………. [the good old days]. As you may be able to tell from the fact that the receiver is hanging down, this phone has seen better days. What does this have to do with construction? Everything. Just because something is done one way– even for years, or decades– doesn’t mean it should stay that way. Just as you learn new technical skills and change your designs, you should also update and modernize your office practices. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Construction Law in North Carolina
Ms. Brumback may be contacted at mbrumback@rl-law.com

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Heat Exposure Safety and Risk Factors

July 04, 2023 — The Hartford Staff - The Hartford Insights
Summer is here and being outside in the heat can take a toll on your body if you’re not properly prepared. It’s important to regulate your body temperature by both hydrating and gradually acclimating your body to withstand the increasingly hot conditions. Your body has “heat control mechanisms” which get overworked in hot, humid and poorly ventilated areas. When you’re exercising or doing physical labor, your muscles generate heat as a metabolic by-product. Sweating can dissipate heat when the air is dry or a breeze is blowing. But when humidity rises and the air becomes denser, sweat doesn’t evaporate from the skin as readily. When this occurs, your core body temperature becomes too high and you can suffer from heat cramps, heat exhaustion or heat stroke. This heat stress can occur suddenly and be very dangerous, that’s why it’s important to be able to recognize the warning signals. This chart will help you identify your body’s heat stress signals and apply the appropriate action to prevent heat-related problems. Read the court decision
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Reprinted courtesy of The Hartford Staff, The Hartford Insights

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CA Supreme Court Set to Rule on Important Occurrence Issue Certified by Ninth Circuit

March 22, 2018 — William S. Bennett – SDV Blog
The California Supreme Court recently heard oral arguments over whether an insurer is required to cover allegations that a builder negligently failed to supervise an employee who sexually assaulted a middle school student while working at the student’s school. The question was originally certified to the California Supreme Court by the Ninth Circuit in 2016, but nothing happened until the court heard arguments on March 6, 2018. Read the court decision
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Reprinted courtesy of William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Bennett may be contacted at wsb@sdvlaw.com

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Contractor Liable for Soils Settlement in Construction Defect Suit

February 10, 2012 — CDJ STAFF

The California Court of Appeals ruled on January 9 in Burrow v. JTL Dev. Corp., a construction defect case in which houses suffered damage due to improperly compacted soil, upholding the decision of the lower court.



Turf Construction entered into a deal with JTL to develop a parcel they acquired. A third firm, Griffin Homes, withdrew from the agreement “when a geotechnical and soils engineering firm reported significant problems with soil stability on 14 of the lots.” Turf Construction then took over compacting and grading the lots. Turf “had never compacted or graded a residential tract before.” Robert Taylor, the owner of Turf, “testified he knew there was a significant problem with unstable soils.”



After homes were built, the plaintiffs bought homes on the site. Shortly thereafter, the homes suffered damage from soil settlement “and the damage progressively worsened.” They separately filed complaints which the court consolidated.



During trial, the plaintiff’s expert said that there had been an inch and a half in both homes and three to five inches in the backyard and pool areas. “He also testified that there would be four to eight inches of future settlement in the next fifteen to twenty years.” The expert for Turf and JTL “testified that soil consolidation was complete and there would be no further settlement.”



Turf and JTL objected to projections made by the plaintiffs’ soil expert, William LaChappelle. Further, they called into question whether it was permissible for him to rely on work by a non-testifying expert, Mark Russell. The court upheld this noting that LaChappelle “said that they arrived at the opinion together, through a cycle of ‘back and forth’ and peer review, and that the opinion that the soil would settle four to eight inches in fifteen to twenty years was his own.”



Turf and JTL contended that the court relied on speculative damage. The appeals court disagreed, stating that the lower court based its award “on evidence of reasonably certain damage.”



Turf also that it was not strictly liable, since it did not own or sell the properties. The court wrote that they “disagree because Turf’s grading activities rendered it strictly liable as a manufacturer of the lots.” The court concluded that “Turf is strictly liable as a manufacturer of the lots.”



Judge Coffee upheld the decision of the lower court with Judges Yegan and Perren concurring.

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Is Construction in Arizona Back to Normal?

September 10, 2014 — William M. Kaufman – Construction Lawyers Blog
The Phoenix Metro area is finally pulling out of the Great Recession of 2008. Potential homebuyers are frantically looking to buy a home before interest rates rise and prices continue their ascent to normalcy. For the last several months, residential construction builders have continued to buy more land around the Valley of the Sun for new subdivisions, especially in North Phoenix and the East Valley. In fact, from January through May of 2013, in the Phoenix Metro area alone, 86 new communities have come to fruition—more than all of 2012. Nationally, single-family housing starts reached 667,000 in December 2013 according to the National Association of Home Builders tracking of single-family home starts, which is comparable to 1985 levels. It has been well documented that since the conclusion of World War II, Arizona’s population growth fostered new home construction at a rapid, almost unmatched pace. At the 2006 construction peak, Arizona’s residential construction output climbed to 64,000, more than double the average 20,000 to 30,000 new homes that are typically constructed annually. Building rates have not come close to the 2006 numbers, but new home starts increased 70 percent since 2012. So after six years after the real estate bubble popped, is the construction industry in Arizona finally back to normal? It depends on your definition of “normal.” In 2009, foreclosures reached alarming proportions. However, in 2010, the engine of Arizona’s population growth, the Phoenix Metro area, began to grow again. Since 2010, Maricopa County had added 125,000 residents. There is strong demand for new housing, and appreciating housing prices has let the construction industry get back on its feet. In residential construction, supply is tight, and all cash offers are common. We all know that Wall Street played a huge role in creating the housing bubble, and eventual bust, by facilitating the use of risky, sub-prime mortgages and turning them into securities that were sold to investors, pension-funds, and the like. Reprinted courtesy of William M. Kaufman, Lockhart Park LP Mr. Kaufman may be contacted at wkaufman@lockhartpark.com, and you may visit the firm's website at www.lockhartpark.com Read the court decision
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Include Materials Price Escalation Clauses in Construction Clauses

December 26, 2022 — Robert Alfert Jr. - Construction Executive
The construction sector has been in a bull market for an unprecedented period of time. With the novel impacts from the coronavirus—and all the associated side effects, such as government moratoria, shipping delays and materials availability—we are now in a market of extreme volatility in pricing, inflation and increasing capital finance rates. And yet the construction sector continues to plow forward despite uncertainty, producing critical infrastructure, and much necessary housing, among other projects. The signs are that this trend will continue at least through Q1 of 2023, and likely beyond that, especially when you factor into the equation the many billions of dollars being placed into the market through the Bipartisan Infrastructure Law. It is not surprising, therefore, that the number one issue in construction contracts in 2022 is how parties handle inflation and materials cost escalations in existing contracts and in the negotiations for new contracts. There is no other issue more heavily negotiated, often disputed and hotly debated in the construction sector today. Reprinted courtesy of Robert Alfert Jr., Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Alfert may be contacted at robert.alfert@nelsonmullins.com

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