Representing Businesses and Individuals in Chicago and Northern Illinois

Preserving Evidence on Home Construction Cases

By Adam Whiteman, Commercial Collection Attorney

Litigating a case for construction defects can be devastatingly expensive and time consuming for the homeowner and highly disruptive for the contractor‘s business. What the homeowner thought would be the construction of a dream home or addition can turn into a financial and emotional nightmare. What the contractor thought would be a nice paying job turns into a major distraction of time and resources.

If the relationship between a homeowner and the contractor is going south, it is critical that the parties take steps to preserve and/or document the evidence of the defects or the lack thereof. This is an area that can be overlooked by a homeowner who, frustrated with the problems and delays they have been facing, rushes forward with a new contractor. Similarly, the contractor might want to just get away from a seemingly litigious homeowner. However, if the allegedly negligent work is removed, replaced or demolished, the parties may have evidentiary problems when it comes time to prove up or defend their case.

Get Concessions While You Can. If you represent a homeowner, encourage a mediation type meeting with the contractor if there still is a modicum of cooperation between the parties. The architect, a home inspector, or some other competent, but relatively neutral third party could be in attendance. Together, then, they should walk the property and examine the problem areas and defects. Notes should be taken and the meeting could be videotaped. A punch list of agreed problems can be created during this meeting. Problems that the contractor denies should also be listed. Then the contractor should be asked to sign this punch list acknowledging that these problems exist. The contractor should be asked to present a list of remedies/solutions to the problems within a certain period of time.

By doing this, you will have secured a list of problems that the contractor admits are in existence. This is extremely useful when it comes to the proofs, because without it, if the property is demolished or repaired by another contractor, the original contractor may simply deny that any such defects ever existed. As a general rule, admissions are more persuasive than facts proved up by other means. judges (and juries) are far more likely to be persuaded by defects that the contractor actually admitted to at one time than by defects that have to be proved up by the testimony of others.

Similarly, if you represent a contractor, this process will allow you the opportunity to document the homeowner’s complaints and somewhat freeze them in time. This can place a limit on the nature and extent of the alleged complaints and prevent them from expanding if the dispute persists.

Spoliation/Preservation of Evidence. As suggested above, once another contractor has come in and begun to remedy the defective work of a prior contractor, the question of spoliation must be addressed.

“The general rule in Illinois is that there is no duty to preserve evidence. Boyd, 166 III. 2d at 195. In Boyd, we set forth a two-prong test which a plaintiff must meet in order to establish an exception to the general no-duty rule. Id. Under the first, or “relationship,” prong of the test, a plaintiff must show that an agreement, contract, statute, special circumstance, or voluntary undertaking has given rise to a duty to preserve evidence on the part of the defendant…Under the second, or “foreseeability,” prong of the Boyd test, a plaintiff must show that the duty extends to the specific evidence at issue by demonstrating that ‘a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.’ Boyd, 166 III. 2d at 195. If the plaintiff fails to satisfy both prongs of the Boyd test, the defendant has no duty to preserve the evidence at issue. ..” Martin v. Keeley & Sons, Inc., 2012 IL 1 13270 at ¶27 (III., 2012)

According the Illinois Supreme Court, “Under Illinois law, spoliation of evidence is a form of negligence… Accordingly, a plaintiff claiming spoliation of evidence must prove that: (1) the defendant owed the plaintiff a duty to preserve the evidence; (2) the defendant breached that duty by losing or destroying the evidence; (3) the loss or destruction of the evidence was the proximate cause of the plaintiff’s inability to prove an underlying lawsuit; and (4) as a result, the plaintiff suffered actual damages…” Martin v. Keeley & Sons, Inc., 2012 IL 113270 at ¶26 (III., 2012)

In light of the above, it is prudent for the homeowner to assure that they have not only adequately documented proofs of the defects in construction, but also that they assure that the allegedly negligent contractor is provided an adequate and reasonable opportunity to inspect the construction before remedies and/or demolition are undertaken. This may prevent claims down the road that the homeowner engaged in the spoliation of evidence. The homeowner may be opposed to this because they may never want the contractor to set foot in their home again, but you must explain to them the importance of this issue should the case proceed to trial.

A detailed letter should be sent to the contractor or their attorney setting forth all of the claimed defects that have been observed. The contractor should be invited within a time certain to inspect those defects. Warning should be provided of the exact date and time that demolition will be taking place. The contractor should be invited to attend the demolition process as well. In this way, the contractor will have a harder time claiming that they were denied the opportunity to examine the evidence.

Not all the defects may be observable during the defect inspection referenced above. Indeed, if the contractor was truly unskilled, it may very well be that the structure they built is replete with defects that will be revealed during demolition or repair of their work. It is essential that these defects be documented by video and in detailed notes by the architect or replacement contractor. The demolition team will not likely be sensitive to these issues as they bang away with sledgehammers. Thus, great care should be taken to supervise the demolition process. If a new defect is discovered, the negligent contractor should be informed and provided an opportunity to inspect. If that is not possible, then an attempt should be made to preserve all or a portion of the defective work as physical evidence. This may not be financially or physically possible, but the issue should be addressed with the homeowner so they can make an informed decision about how they will proceed with the demolition.

If you are on the contractor’s side of this equation, then when you are terminated from a job, you may want to demand that the homeowner provide you with a list of claimed defects and provide you with an opportunity to inspect any such claims before and during demolition and/or repair. If a homeowner is put on notice of your demand, they might now have a duty to allow you such access, and if they deny you such access, you may be successful in asserting a spoliation claim should the matter proceed to trial.

Finally, whether you are a homeowner or a contractor, it is critical to review the actual written contract to determine your rights and remedies in case of an alleged breach. For example, the contract may or may not permit a cure period in regards to any defects. In this regard, and in anticipation of possible litigation down the road, it is best to get your attorney involved as early as possible in the process so as to assure that evidentiary preservation and contractual compliance. Your attorney can be a powerful advocate in this regard.

Adam Whiteman is a partner with Whiteman Borden LLC in Chicago and maintains a practice with a concentration on commercial collections and real estate law.