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Copyright 2007 Hawaii State Bar Association
Hawaii Bar Journal

ARTICLE: MANAGING A COMPLEX CONSTRUCTION DEFECT CASE

2007

Hawaii Bar Journal

10 Hawaii B.J. 133

Author

by Charles L. Carson *

Excerpt

In the general sense, to classify a case as involving a defect or defects in construction seems to beg the question. Logically, the way we lawyers presumably think, a construction defect case should be defined as a 'leaky building case,' or a 'plumbing failure case,' or a "cracking concrete case,' and thus provide some specificity about the nature of the failure. However, as a practical matter, most construction defect cases have widely disparate failures in various building systems and locations in the involved structure or structures, and so such specificity is not possible.

A construction defect case is generally defined as a matter alleging failure in the materials supplied to the project, or that the work provided by the contractors and subcontractors or the design by the engineers and architects is below the standard of care in the industry, or a combination of all three. If the involved structure is a large commercial building, the failures are usually more readily identifiable. But, in residential structures, and in condominium structures in particular, the failures frequently seem to be more complex and difficult to assess.

Much of the construction defect litigation over the past 35 years has been in California. The early cases involved claims of defective soil engineering, grading and compaction, which caused landslides and soil subsidence in subdivisions where the "cut and fill" method of soil preparation was used. More recent cases have alleged numerous failures, including failure of flashing and waterproofing allowing water to infiltrate the structure, failure of ...
 
 
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