Destruction of evidence can be fatal in any lawsuit, but it is especially troubling in construction defect disputes. It's always important to allow an opponent and their expert the opportunity to inspect premises and review the alleged defects.
 
A recent Pennsylvania appellate decision highlights the need to do more than just allow a site visit in a defect case. It also drives home the need for clients to advise counsel of any repairs or changes to work at issue in a lawsuit.
 
The plaintiff in Kinder v. Heritage Lower Salford, L.P., 2017 WL 2333765 alleged several residential construction defects, specifically water intrusion due to improper stucco installation (a real problem in Pennsylvania). All defendants except one were able to inspect the home and take photographs. The Court considered this to be a "visual" inspection.
 
According to the opinion, the clients had the defects repaired a few months after the visual inspection, but didn't tell their lawyer. In turn, no one notified the defendants or their lawyers. The defendants subsequently requested a "physical" inspection with expert witnesses and learned the site had been materially and permanently altered.
 
The trial court granted a spoliation motion in favor of the defendants because—despite the previous inspection and the defendants' ability to take literally thousands of photographs—no physical inspection of the property could be done in the unaltered state. They argued that experts needed to physically inspect the property and this inspection could not be duplicated by photographic or video evidence. Thus, prejudice existed.
 
With a spoliation sanction in hand, the defendants filed for summary judgment, which was granted. The Superior Court sustained the trial court, reiterating the affirmative duty the plaintiffs had to preserve evidence. Also, the court noted the plaintiffs had counsel. Counsel stated on the record he was unaware of the remedial work. The court was unmoved.
 
Moral of the story: Don't materially change the conditions in a construction case unless you have a court order allowing it, or everyone involved in the litigation is aware and has a reasonable opportunity to do a physical inspection, not just a visual. The only exception occurs when exigent circumstances exist, e.g., a collapse, major leak, etc.
 
While this is an unreported case and involved residential construction, the principles hold true on any construction case (or any litigation for that matter).
 
Please contact us with any questions about this issue.