Historically, when a property in New York City was damaged during excavation activities on a neighboring property, the injured property owner has been able to obtain compensation from the adjoining property owner/developer or the contractor performing excavation by proffering evidence of excavation and resulting property damage without any need to prove fault. Only the owner/developer and the excavator were at risk of being held strictly liable—which made sense since they were the parties who had some control over the excavation process.
Recent case law developing in the Appellate Division, First and Second Departments, however, has dangerously broadened the range of project participants on whom such liability may be imposed—regardless of their fault or negligence—to encompass various design professionals involved with the construction project where excavation is performed, e.g., architect of record, structural engineer, excavation engineer. In other words, an architect or engineer whose plans affect (or even potentially affect) the design or methodology of excavation-related work runs the risk of being held strictly liable under the Building Code, regardless of fault, for any damage to an adjacent property.
