FOOTNOTES 17
Abstract
It is sadly reported that some failure or error in the work or materials or equipment will occur on every construction project of any size.1 The introduction to the reality of defective work produces a number of questions for the owner saddled with the problem. The most interesting of these may be "why?"; however, it may also be the least important, except to the extent it bears on establishing the liability of the person answering the question "who?" The real issues for the owner and the lawyer are, who is responsible for the construction can the problem be avoided or its possibility reduced in the future. When, where, why and how the defects occurred are meaningless outside of the context of these two issues.
The approach to defective work is twofold for the construction counsel - prevention and cure. Unfortunately, there is neither a prevention nor a cure; however, owners and their attorneys may seek to prevent future construction failures in the manner in which they impose contractual duties, responsibilities and obligations, and to cure existing construction failures by enforcing remedies against and obtaining recoveries from the parties who are at fault. The preventative aspect concerns itself with provisions of the contracts entered into by..the owner which deal with performance obligations, correction of work, defects, warranties, inspections, approval of payments, withholding of funds, bonds, termination and other matters which affect the owner's ability to determine the existence of defective work, to require remedial efforts and to protect itself from damages resulting from its existence. The curative aspect focuses on the identification of claims, the various bases thereof and parties against who assertion is possible.
There is no way, to eliminate the. possibility of defective work. Its potential is a risk which must be controlled, monitored and dealt with decisively when it arises. Like all maladies, defective work is most damaging when it arises unexpectedly and remains untreated. Defects neither fix themselves nor go away if ignored. Where defective work is suspected the owner must enforce its contractual rights and, if required, pursue claims against all parties potentially liable
under the various theories available.
