I have been fascinated by robots ever since hearing “danger Will Robinson” over and over on Lost in Space.  What kid hasn’t at some point wished for a robot like Rosie on the Jetsons who would clean your room for you and produce food on demand?

 

Due to developments in robotics, robots are being used more frequently in our world, including the construction industry.

Take “SAM” for example.  SAM is a Semi-Automated Mason being used by a Colorado masonry contractor.  SAM puts mortar on bricks and places them in a wall.  SAM can place around 300-400 bricks an hour, which is about 5 times more than a human.

 

 

There is still a human factor to SAM’s work.  Workers still have to load bricks and mortar, and follow behind SAM to remove excess mortar.  Most importantly, someone has to program SAM for the work on the project.   Without the correct programming, then SAM doesn’t know what work to perform.

Robots in construction are not just be limited to masonry work.   In the next few years you should expect to see robots that can handle more and more tasks on a construction project, especially tasks involving a repetitive process.

So what if something goes wrong?

In SAM”s case, what if the brick wall is improperly constructed?  Would the fact that the work was performed by a robot matter?

From a big picture perspective, probably not.  The owner would still hold the general contractor responsible under the owner/contractor agreement, and the general contractor would still hold the subcontractor responsible.

What may matter though is how you go about establishing that the work was negligently performed, including whether the problem was caused by a human error or a robot malfunction.

A negligence claim requires breach of a legal duty by failing to comply with a standard of care.  In the case of defective work performed by a robot, how would you establish the standard of care and then demonstrate a breach?

This may require evidence addressing the training for individuals programming the robot, the maintenance of the robot, and protocols for updating its software or operating system.

And if the robot was properly programmed, then evidence will be required to show a malfunction of the robot, which may prove difficult months after a project is complete.   Whether the negligently performed work involves human error or a malfunction of the robot, a robotics expert may be necessary to establish the standard of care.

If you are an owner or general contractor and a subcontractor plans to use a robot like SAM or maybe a driverless bobcat for excavation (yes – they exist) then, at a minimum, your contracts should:

  • address protocols for how programming data will be preserved;
  • require daily reports on the operation of the robot; and
  • require reports on the maintenance of the robot throughout the course of the project.

As the use of robots increases in the construction industry, there will be new questions and new issues to address.  Will negligent work by a robot be covered by a commercial general liability policy?   What happens if someone hacks into the robot and intentionally harms the work?

Perhaps we’ll try to tackle those questions sometime in the future.  For now, even though it sounds like something that belongs in a science fiction movie, SAM may be coming a  project near you.

I once had a teacher who called the word “please” a magic word.  For instance, if you asked to go to the restroom, the response was usually, “what’s the magic word?”   Then you said “please” and got to go the restroom.

This exchange repeated itself numerous times a day as students made various requests.  The word “please” usually worked.  Of course, there were other times when even if you used the word “please,” your request was still denied, which sort of muddied the water as to what was so magic about it to start with.

As it turns out, in construction law, there are also some magic words.  In fact, the recent case of Nu-Build & Associates, Inc. v. Sooners Group, L.P. illustrates this point because in that case, failing to use the magic word “reasonable” caused $3.6 million in damages to disappear.

You read that correctly.  One minute there was an award of $3.6 million in damages, and the next minute – “poof” – the damages were gone.

Here’s what happened.  Nu-Build was the general contractor for a project owned by Sooners Group.  Sooners Group terminated Nu-Build before the project was complete and hired a replacement contractor.   As often happens, a lawsuit followed.

Following a bench trial, the Court awarded Sooners Group $3.6 million in damages for its costs to complete the project after Sooners Group terminated Nu-Build.  On appeal, however, the Court of Appeals reversed the $3.6 million damages awarded to Sooners Group, and the court’s opinion is instructive to construction lawyers.

Here are two important statements from the Court of Appeals that construction lawyers should remember related to recovering damages for the cost of completing a project:

  1. One,  when seeking damages for completion costs, whether based on a contract or a tort, you must establish that the completion costs are reasonable.
  2. Two, proof of the amounts charged and paid are not evidence that the amount is reasonable.

The Court of Appeals determined that Sooners Group had not adduced any evidence at trial that the completion costs were reasonable, therefore, the entire amount was reversed.

Point number 2 seems illogical to owners and contractors who have had to complete a terminated party’s work.   From their perspective, the amounts charged and paid to complete a project or scope of work are inherently reasonable or else they wouldn’t have paid them.  Why would someone intentionally pay unreasonable costs to complete a project?

Despite the appeal of that logic, the law takes a different view.  There has to be evidence that the completion costs were reasonable to support an award of damages.

So what does this mean for construction lawyers?  One thing it means is that careful thought should be given to selecting experts and contractors that can establish that completion costs are reasonable.

And as simple as it sounds, it means making sure your experts literally say the magic word “reasonable” several times.  There’s no way to know for sure, but if one of Sooners Group’s experts had testified that Sooners Group’s $3.6 million in completion costs were reasonable, those damages costs may not have disappeared.