CONSTRUCTION LAW
The distinction between the strict liability, negligence and
models is very important. That distinction shapes the claimant’s
burden of producing evidence that will prove the pile driving
contractor is liable for the alleged harm. Where strict liability
governs, the analysis is limited to determining whether the
claimant’s evidence proves the pile driving activities caused
the alleged damage. If causation is proven, the issues are then
limited to determining the appropriate type and amount
of compensation.
The negligence framework is more complex because it requires
that the claimant prove not only that the pile driving caused
the harm, but also that the contractor breached a standard of
care while performing its work. Regardless of which approach
is applied, 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. The pre-contract
phase of a project is most essential to
the implementation of an effective risk
management plan. In particular, certain
contract provisions require a contractor
to indemnify the project owner or other
contractors for third-party claims; other
provisions limit liability to the owner or
other contractors on the project; certain
provisions may incorporate by reference
geotechnical and/or soils reports as
contract document, and every contract will
include provisions detailing the contracting parties’ insurance
coverage requirements.
Pile driving contractors must also insist that robust differing
site conditions provisions be included in the contract Those
provisions require special attention because pile driving always
involves the risk of encountering unforeseen or unknown
underground conditions. The issue sometimes arises when
unexpected underground obstructions require the unplanned
use of a different pile driving method. When that happens, it is
even more important that the responsibility for the differing site
condition be properly allocated to the other contracting party
or owner.
Once the construction contract is executed, a pre-construction
condition survey of the surrounding structures should be
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