Are you contemplating a lawsuit, or have already filed a lawsuit, against a builder or contractor for shoddy or defective construction? Are you thinking about repairing or correcting the defective work before, or during, the lawsuit? Are you aware that repairing or correcting the defective work without giving your contractor an opportunity to inspect the defective work can result in your case being thrown out of court?
In Pennsylvania, a party that reasonably anticipates litigation has an affirmative duty to preserve relevant evidence under the doctrine of spoliation. If a party, intentionally or unintentionally, destroys or loses evidence or fails to give the other party an opportunity to conduct an independent investigation or inspection, the doctrine of spoliation allows a court to throw the litigant’s claims out of court. In the context of construction litigation, it means that you cannot undertake repairs without giving the contractor or builder an opportunity to conduct an independent investigation. Unfortunately, two homeowners in Montgomery County found out the hard way when the Superior Court affirmed the trial court’s decision to dismiss their claims against the builder under the doctrine of spoliation.
In Kinder v. Heritage Lower Salford, L.P., 2017 WL 2333765 (Pa. Super. 2017), the Superior Court affirmed the trial court’s decision in dismissing the homeowner’s claims under the doctrine of spoliation. The Kinder plaintiffs filed suit against the builder alleging that the builder defectively installed the stucco exterior resulting in significant water intrusion. The builder employed numerous subcontractors during construction, and did not perform any of the actual construction work. After filing suit, various defendants conducted a visual inspection of the homes. Five months after the visual inspection, the plaintiffs, without notice to their attorneys or the defendants, had their respective homes repaired, which resulted in the inadvertent destruction of evidence relevant to the case (i.e. evidence of defective or shoddy construction methods). However, plaintiffs took numerous photographs while the contractors performed the repairs. The remedial work prevented the defendants from conducting a physical inspection to investigate and determine the true source/cause of the water intrusion. Consequently, the defendants filed a joint motion regarding spoliation, which the trial court granted. Upon the court’s order granting the spoliation motion, the defendants filed a motion for summary judgment, which ultimately resulted in the dismissal of the plaintiffs’ claims. On appeal, the plaintiffs claimed that the dismissal of the case was an extreme sanction since the parties had access to hundreds, if not thousands, of photographs of the homes taken during the construction and during the repairs/remediation.
However, the Superior Court affirmed the trial court’s decision and reaffirmed the doctrine of spoliation by holding that it was the plaintiffs’ “responsibility to preserve the areas of the alleged defects, and this responsibility was not relieved because of the lapse of time from the building of the home to the remediation. Further, the failure to preserve evidence was highly prejudicial to [the defendants] because the claim required inspection of the particular areas of water intrusion during remediation.”
In light of the Superior Court’s decision in Kinder, it is important that you consult with an attorney prior to filing suit against a contractor or builder for defective construction, and especially before you even contemplate undertaking repairs, to minimize the risk of having your case thrown out of court on a legal technicality.
If you have any questions regarding this Blog article, please contact the attorneys at Hamburg, Rubin, Mullin, Maxwell & Lupin, P.C.
