By Arrol Gellner
Some years ago, a respected architectural firm was sued by the parents of a teenaged boy who had climbed into a fenced-in transformer enclosure and vandalized the transformer with a baseball bat. The boy had been seriously electrocuted when the bat struck a high-voltage cable.
Why were the architects sued? Because they had designed the building on whose grounds the incident took place. The parents held them partly to blame for creating an "attractive nuisance," the fenced-in transformer enclosure, which purportedly enticed the boy to vandalize it.
Whether or not the suit was justified, one thing is certain: The legion of lawsuits filed against building professionals (including municipal building departments) are one reason new homes cost as much as they do. For one thing, architects, structural and soil engineers, and a host of other building professionals are forced to pay astronomical insurance premiums to protect themselves from litigation, whether merited or not. These costs reflected in higher fees.
What's more, many new buildings are "overdesigned" in an attempt to avoid lawsuits stemming from purported shortcomings. Throughout the building professions, there's an increasing tendency to err heavily on the side of conservatism. For example, a structural engineer may specify a beam one size larger than necessary to provide a little extra insurance against litigation problems down the road. Ultimately, of course, such expenses are passed on to the consumer in the form of more expensive buildings. Perhaps the most dismaying thing about our litigious society is that because of so-called "shotgun" litigation, in which attorneys target anyone even remotely connected with a complaint, a professional can work competently and conscientiously and be sued regardless. In a recent suit involving a home with foundation settlement problems, the plaintiff's attorney sued not only the architect, the engineer, and the contractor, but also the landscaper, the drywall contractor, and even the painter. All of these parties were eventually forced to contribute to the damage award, never mind that some of them had no connection whatever with the case.
Why the increase in litigation? Do new houses settle or leak more than older ones did? No - in fact, almost certainly less so. It's just that many people have come to regard lawsuits as a routine means of working out grievances.
Yet litigation should be the last resort, not the first. One alternative to litigation is arbitration, in which the aggrieved parties agree to abide by the decision of an impartial, mutually chosen arbiter. It's faster than going to court, and much less expensive. Provisions for arbitration can be written into your construction contract. Contact the American Arbitration Association for more information.
Another alternative is even simpler: communication. You know, talking. That thing people used to do before they started suing each other. One unusually courageous lawyer put it this way: "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time."
The lawyer's name was Abraham Lincoln, and he made that statement in 1850. We haven't learned much in a century and a half.
Copyright 2002-2006 Arrol Gellner. Distributed by Inman News Features
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