Did you crack? You paid!
Sep 16, 2020
By: Shlomi Hadar, Attorney – John Geva, Hadar & Co. Attorneys
Recently, the Haifa District Court heard a lawsuit filed by a couple, alleging that a design failure led to serious construction defects in their home, a two-story, single-family home in the settlement of Shorashim. The home was built using the "Build Your Own Home" method according to a building permit received from the local Planning and Building Committee. The plaintiff was the developer of the project, and for this purpose he hired the services of a supervisor, an engineer who would design the construction, a skeleton contractor who would build the skeleton, an electrician, and a plumber. The lawsuit was filed against the building engineer who designed the skeleton of the home, and against the engineering company that employs the building engineer and is also managed by him.
The plaintiffs claimed that the building engineer was negligent in designing the house's skeleton foundations, in that he designed short piles in relation to the type of soil on which the residence was built, and as a result, a failure occurred in the structure, which led to cracks, necessitating its demolition and reconstruction, and therefore sought to hold the defendants liable for approximately 2.7 million NIS.
The defendants denied the plaintiffs' claims, and claimed that the cracks observed were not in the foundations of the building, but rather mostly in the interior partitions of the building and were caused by work performed by third parties. Therefore, third-party notices were filed against the construction inspector on behalf of the plaintiffs, the skeleton contractor, the architect who designed the house, the electrician who performed the electrical work in the house, and also against the plaintiffs themselves, as the construction contractors, the work commissioners, and as general contractors. The defendants claimed against the inspector that he did not inform them that a soil consultant's opinion was needed to examine the depth of the piles and did not comment on the manner in which the work was performed regarding the manner in which the skeleton was designed.
The defendants further claimed that cracks in the walls of the building do not indicate a danger to the stability of the building, but are merely an "aesthetic defect" and result from changes in temperature, humidity, and different thermal behavior in the contraction and expansion of the blocks compared to the concrete, and sometimes also between themselves. The defendants also claimed that no risk was found in the building that required its demolition and reconstruction. The defendants added and claimed that the plaintiff, who served as the developer and main contractor responsible for maintaining full supervision and review of the execution, chose to hire a contractor who was not a registered contractor as a contractor to perform the skeleton work, and gave his consent to the neighbors' excavation below the entrance level.
The defendants' claims were raised without being supported by an expert opinion on their behalf. In contrast, an expert on behalf of the court expressed his opinion that there were constructive cracks in the plaintiffs' house, both in the outer shell of the building and in the inner shell, in the partitions. According to the expert, the short piles were what caused the cracks to form in the plaintiffs' house, as a result of the subsidence of the differences between the piles, and as a result of the swelling of the ground and the lifting of the piles in all parts of the building. The expert proposed two solutions to treat the structure, the first is to strengthen the house, a repair that includes partial dismantling of the building's walls, dismantling all the tiled roofs, stepping on the building's walls and straightening them in places where there was a tendency in the walls and assembling all the elements that were dismantled for the purpose of strengthening, while the second is to demolish the house and rebuild it. The repair costs for the second option were estimated by the expert to be approximately 2.1 NIS.
By: Shlomi Hadar, Attorney – John Geva, Hadar & Co. Attorneys
Recently, the Haifa District Court heard a lawsuit filed by a couple, alleging that a design failure led to serious construction defects in their home, a two-story, single-family home in the settlement of Shorashim. The home was built using the "Build Your Own Home" method according to a building permit received from the local Planning and Building Committee. The plaintiff was the developer of the project, and for this purpose he hired the services of a supervisor, an engineer who would design the construction, a skeleton contractor who would build the skeleton, an electrician, and a plumber. The lawsuit was filed against the building engineer who designed the skeleton of the home, and against the engineering company that employs the building engineer and is also managed by him.
The plaintiffs claimed that the building engineer was negligent in designing the house's skeleton foundations, in that he designed short piles in relation to the type of soil on which the residence was built, and as a result, a failure occurred in the structure, which led to cracks, necessitating its demolition and reconstruction, and therefore sought to hold the defendants liable for approximately 2.7 million NIS.
The defendants denied the plaintiffs' claims, and claimed that the cracks observed were not in the foundations of the building, but rather mostly in the interior partitions of the building and were caused by work performed by third parties. Therefore, third-party notices were filed against the construction inspector on behalf of the plaintiffs, the skeleton contractor, the architect who designed the house, the electrician who performed the electrical work in the house, and also against the plaintiffs themselves, as the construction contractors, the work commissioners, and as general contractors. The defendants claimed against the inspector that he did not inform them that a soil consultant's opinion was needed to examine the depth of the piles and did not comment on the manner in which the work was performed regarding the manner in which the skeleton was designed.
The defendants further claimed that cracks in the walls of the building do not indicate a danger to the stability of the building, but are merely an "aesthetic defect" and result from changes in temperature, humidity, and different thermal behavior in the contraction and expansion of the blocks compared to the concrete, and sometimes also between themselves. The defendants also claimed that no risk was found in the building that required its demolition and reconstruction. The defendants added and claimed that the plaintiff, who served as the developer and main contractor responsible for maintaining full supervision and review of the execution, chose to hire a contractor who was not a registered contractor as a contractor to perform the skeleton work, and gave his consent to the neighbors' excavation below the entrance level.
The defendants' claims were raised without being supported by an expert opinion on their behalf. In contrast, an expert on behalf of the court expressed his opinion that there were constructive cracks in the plaintiffs' house, both in the outer shell of the building and in the inner shell, in the partitions. According to the expert, the short piles were what caused the cracks to form in the plaintiffs' house, as a result of the subsidence of the differences between the piles, and as a result of the swelling of the ground and the lifting of the piles in all parts of the building. The expert proposed two solutions to treat the structure, the first is to strengthen the house, a repair that includes partial dismantling of the building's walls, dismantling all the tiled roofs, stepping on the building's walls and straightening them in places where there was a tendency in the walls and assembling all the elements that were dismantled for the purpose of strengthening, while the second is to demolish the house and rebuild it. The repair costs for the second option were estimated by the expert to be approximately 2.1 NIS.
The court's decision
Judge Dr. Menachem Raniel ruled that the defendants (the construction engineer and the engineering company) have a conceptual duty of care to ensure the plaintiffs that the design work is correct, and that a professional has a duty of care to all those who, to his knowledge, may be harmed by his professional actions. According to the provisions of Standard 940, which discusses the execution and supervision of the foundation of buildings and other geotechnical works in civil engineering, the construction engineer, as the skeleton designer, was required to conduct a soil investigation through a soil survey and trial drilling, in order to determine the depth of the foundations, obtain an opinion from a soil consultant before designing the skeleton, and conduct a soil test to determine the required depth of the piles. In the circumstances of the case, the construction engineer carried out the constructive design without having any verified information about the soil, but only his own assessment based on the situation on the ground. He also ruled that the construction engineer acted in violation of the provisions of the Standard, according to which he was required to design foundations At least 10 meters long. He also determined that the static calculations he prepared did not contain data regarding the foundations, and the piles he designed at a depth of 8 meters did not meet the requirements of the standard according to the type of soil. In doing so, he violated his duty as the skeleton designer, a violation that caused the cracks and the plaintiffs' damages.
The court rejected the defendants' claim that since the court's expert did not determine that this was a dangerous structure that could collapse, the plaintiffs must be satisfied with the alternative of strengthening and restoring the house, and ruled that the alternative of restoring by stepping on it, which leaves the same foundations and repairs the house "patch by patch," does not place the plaintiffs in the situation they would have been in if the planning had been done properly, and therefore the correct solution is to demolish the house and rebuild it according to proper planning, taking into account the conditions of the ground.
Therefore, the court accepted the claim, and ruled that the building engineer and his employer, the engineering company, would pay the plaintiff a total of 2,562,300 NIS (the plaintiff died before the verdict was given), plus additional damages totaling 192,000 NIS. In addition, it was determined that the defendants would pay the plaintiffs the court fee, the expenses of their own experts and an expert appointed by the court, and additional attorney fees totaling 93,600 NIS.
The court rejected the third-party notices filed by the defendants. It was further determined that the plaintiffs should not be held to be contributory, not because an unregistered skeleton contractor was employed in the construction of their house, nor because of the work on the neighbors' lots, since the building engineer is the contractor responsible for the execution of the skeleton, while the skeleton contractor worked under his auspices, especially since no causal connection was proven between the fact that the skeleton contractor is not a registered contractor and the cracks and damages caused to the plaintiffs. The court also accepted the opinion of the court's expert that the neighbors' digging did not cause cracks in the plaintiffs' house, and has no bearing on the defendants' liability for the cracks.
Thus, this is a clear case in which, according to the findings in the ruling, professional negligence in the construction process resulted in damages exceeding the compensation received by the professional for his work, which requires professionals to consider in advance appropriate insurance coverage that will provide a response to cases of this type so as not to lose out in the event of negligence, alongside the importance of avoiding the "adjacent" method in projects involving multiple professionals, under the assumption that it will be possible to shift responsibility to others if necessary.
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