08/31/2021

Editor's Notes

Is expert opinion required to prove breach of a construction contract? It depends. In the last issue, a New Jersey appeals court ruled that expert testimony was required to show contractor breach. The case turned on the interpretation and application of technical specifications in the contract. The finder of fact, a trial judge in that case, could not be expected to use common knowledge and experience to make the determination.

 

A case in this issue arrived at the opposite conclusion. A Connecticut appellate court ruled that expert opinion was not needed. The prompt and severe cracking of a concrete stairway, constructed by a single contractor, enabled a trial judge to reasonably infer the problem was caused by poor workmanship. No expert testimony was required; the judge could rely on common knowledge.

 

The other case in this issue involved an unpaid subcontractor’s ability to recover from a project owner for unjust enrichment. The sub had been unable to recover payment from the defunct prime contractor. The owner had received the benefit of the subcontractor’s work but had paid neither the prime nor the sub for that work. A Tennessee appeals court said equity favored the subcontractor.

 

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