The need to repair construction failures on the job site may often destroy probative evidence of fault, such as material failure, poor workmanship or design defect. In the case of fire, water damage or structural weakness, urgent repairs may be needed to protect life and property. Unrepaired defects in critical path tasks may cause substantial delay, monetary losses and contract breach by innocent parties, and may compel immediate corrective action.
When litigation due to construction failure is reasonably foreseen (and when isn’t it?), the owner, project manager, general contractor or others with control over the failed element come under a duty: to notify all parties who are potentially responsible for the defect and to provide an opportunity to photograph and inspect the failed elements and to provide reasonable opportunity to obtain an expert inspection, preferably before repair. This obligation may arise from a duty to allow opportunity to cure, or from the duty to preserve evidence that is likely to be probative in reasonably foreseeable litigation. There will be difficulty in promptly notifying each of possibly several hundred contracting parties and professionals involved in the project. Strict compliance with a duty to notify prior to repair is often difficult if not impossible.
