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61 Def. Counsel J. 565 (1994)
Differing Site Conditions: Liablity Precautions for Design Professionals

handle is hein.journals/defcon61 and id is 575 raw text is: DIFFERING SITE CONDITIONS: LIABILITY PRECAUTIONS FOR DESIGN PROFESSIONALS There are many pitfalls in the preliminary and later phases of construction projects, but knowledge and precautions can avoid them By DAVID J. HATEM CONCEALED and differing site conditions encountered both above and below ground during the construction process pose liability concerns and precautions for design profes- sionals. These concerns and the need for ad- equate and effective precautions usually arise in the context of claims by owners, contrac- tors, subcontractors and construction lenders. Although a substantial amount has been writ- ten on the subject of differing site conditions, there has not been the same focus on the po- tential liability concerns of design profession- als. This topic is of current importance be- cause of the increasing number of these claims, especially in difficult economic times when owners tend to establish inadequate project construction budgets and contractors tend to carry insufficient cost contingencies. DIFFERING SITE CONDITIONS A. In General By definition, genuine concealed or differ- ing site conditions, referred to generically as differing site conditions, are occurrences or events that, when encountered, were not actu- ally or reasonably anticipated by one or more parties involved in the construction process. Generally speaking, they are physical condi- tions on the site that either are not indicated in the contract documents for a construction project or in varying degrees are different from conditions normally encountered on a project of the character under construction. They usually are subsurface physical condi- tions, such as a ledge or other unsuitable soils materials, but they may arise above ground as well. Typically, when differing site conditions are encountered, additional (read, unanticipated) time and cost for completion of the construc- tion project results. Even if a contractor is en- A member of the Boston firm of Burns & Levinson, David J. Hatem concentrates his practice in the field of professional liability. He is a graduate of Boston University (B.A. 1974; J.D. 1977). titled to additional time or money, or both, on the basis of a valid differing site conditions claim, owners often have a difficult time ac- cepting any obligation to pay or grant a time extension. Owners react this way because the payment of a differing site conditions claim usually in- creases the cost and time of performance of the construction contract, but it will rarely, if ever, increase or add to the value of the project. In addition, contractors may seize on alleged differing site conditions claims as an opportunity to make up for profitability defi- ciencies arising from a low-ball bid. But whether a differing site conditions claim is valid or not, economic tensions arise between owners and their lenders, on the one hand, and contractors and subcontractors, on the other, when these claims are made. Those tensions, increasingly pronounced during times of difficult economic conditions, may manifest themselves in a widening of the li- ability net in an attempt to reach design pro- fessionals. While the risk of liability for design professionals cannot be entirely eliminated, there are contractual and professional practice precautions that can reduce the risk or mitigate the consequences of liability. B. Meeting the Claim The primary issue whenever a differing site condition is encountered is whether the owner or contractor, at least in the first instance, bears the economic and temporal performance risks.

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