Reckless Disregard is. . . Well. . .Reckless

Originally posted 2011-10-03 14:52:45. Republished by Blog Post Promoter

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Punitive damages are hard to come by in construction law cases. This is because almost all construction contract cases are exactly that: contract cases. Between the economic loss rule and the Virginia Courts’ almost (though not completely) impregnable wall between tort and contract, punitive damages may seem completely out of the picture. Depending on your perspective and position on the construction project food chain, this fact can be either frustrating or comforting.

However, like all seemingly immutable laws, this one has an exception according to the Chesapeake County, Virginia Circuit Court. In Sawyer v. C.L. Pincus Jr. & Co. et. al. this Virginia court was faced with the following scenario. The defendants, a church and it’s contractor, were sued by Sawyer over a construction swale that was built partly on Sawyer’s property. According to the plaintiff, the only permission they gave to their neighbors at the church was to allow the church to build a drainage berm that did not encroach on their property. As stated above, the church and its contractor built a swale that encroached on the Sawyers’ property.

Of course, the Sawyers’ sued and included a negligence count and one for reckless disregard and gross negligence and sought punitive damages. The Sawyers claimed that the defendants built the berm

with willful and wanton disregard for Plaintiffs’ property rights knowingly and willingly built the structure so that it encroaches 6 feet into Plaintiffs’ property along the entire 300 foot length.

The defendants asked for dismissal of both of these last counts for all of the reasons discussed here at Musings, i. e. negligence isn’t in play, this is construction.

The Court denied the demurrer and allowed both the claim for negligence and the claim for punitive damages to move forward. In essence, the Court stated that the disregard of the Sawyers’ level of permission and property line could have at least been negligent and that the only difference between gross and run of the mill negligence is degree. Therefore, facts needed to be considered and the Sawyers could continue forward with their claims.

In short, construction contractors must be careful about where they are building, particularly where permission from neighbors is necessary. Failing to do so can put a contractor or subcontractor at risk for not only regular compensatory damages but also punitive damages. Consultation with an experienced Virginia construction attorney prior to and during construction can help assure a construction pro that it properly interprets both its contract and any easements or other grants of permission for construction from neighboring property owners. Moving forward without the proper legal and practical consultation would be (you guessed it) reckless.

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