Managing one’s risk of liability can
and should be done during each of
the pre-contract, pre-construction and
construction phases of a project.
and outline how they must be factored into an effective risk
management strategy.
As mentioned above, each state approaches the issue of
liability in its own way, but they generally do so within one of
three general frameworks. The most draconian approach to thirdparty
risks is one in which pile driving is classified, by default, as
an ultra-hazardous activity similar to blasting with explosives.
Louisiana, for instance, applies this doctrine of strict liability to
all pile driving activity. That is to say, anyone who installs piles
is automatically liable for any harm they cause regardless how
careful they were during the installation process.
The second approach to third-party liability risks is the
more common approach to how states treat pile driving-related
claims. These states apply a negligence standard to determine
whether the contractor is liable for harm caused by pile driving.
Under this approach, the salient question is whether or not the
pile driving contractor breached a standard of care. Experts in
the field of pile driving as well as structural and geotechnical
engineering determine the standard of care by establishing what
a competent, qualified pile driving contractor would have done in
the same or similar circumstance.
The third approach to third-party liability is a hybrid of the
first two approaches. In the states that take this approach, which
include New York and Maryland among others, courts ask a series
of questions to determine if the specific pile driving method was
an abnormally dangerous activity given the project’s location. For
example, was it appropriate to use the drop hammer pile driving
method next to a business that manufactures sensitive medical
devices? If the answers give rise to a finding that the pile driving
was an abnormally dangerous activity and it is proven the activity
caused the damage, the contractor will typically be held strictly
liable for the alleged harm. On the other hand, if the answers do
not support such a finding, liability will be assessed using the
negligence standard.
CONSTRUCTION LAW
110 | ISSUE 6 2020 www.piledrivers.org
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