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.

Recently, the largest single ransomware attack to date occurred when ransomware known as WannaCry attacked companies around the world.  These companies will likely not know the extent of the damage caused by this attack for months, if not years.  WannaCry is just one of several ransomware threats that companies face.

Ransomware either prevents a user from accessing their computer or their files until a ransom is paid to the hackers.  Ransomware can infect a system in various ways, and hackers are becoming more and more creative about ways to deceive  an employee into unknowingly infecting a company’s network.

Cybersecurity

Contractors are not immune to ransomware (or other cyberattacks).  A successful ransomware attack on a contractor’s network would likely shut down the contractor’s operations on its projects for a period of time.

No access to email or any documents until the contractor pays the ransom (which will likely have to be paid in bitcoin, which would probably present its own challenges).  And even then, some hackers would not release the files back to the contractor even after the ransom was paid.  Think of the impact that this would have on a contractor’s business operations.  No bids could be submitted and every project would be delayed.

The business impact would be catastrophic.  There are insurance professionals that can help address potential business interruption damages.  But what about liability for project delays due to a ransomware attack?  Would the delays be excusable under the contractor’s contracts?  Most likely not.

Force Majeure

Many contracts contain a force majeure clause that addresses various events that would be considered excusable delays, or in some contracts, these events give one or both parties the right to suspend the work or terminate the contract.  Most force majeure clauses are not broad enough, however, to cover a ransomware attack.

This means that contractors would potentially be responsible for damages on every project that is delayed by a ransomware attack.  Depending on the terms of the contract and the owner’s course of action, the contractor could be faced with significant liquidated damages, its work being supplemented, or its contract being terminated.

The Wannacry attack will like only embolden hackers who seek to use ransomware to extort money from companies.  Contractors should make sure that the force majeure clauses in their future contracts include ransomware attacks and other cyberattacks in the list of events that are excusable delays.  And then hope that you never need to rely on it in the future.