Determining the standard of care for construction work is a common issue that Wisconsin construction lawyers face. How bad must construction be to create legal liability? Although the answer is usually not clear cut, Wisconsin has a framework for assessing the question.
In Wisconsin, every construction contract contains an implied common law duty to perform the contract with care and skill. A building contractor has a duty to exercise ordinary care in the construction or remodeling of a building. This is sometimes referred to as performing the contact in a “good and workmanlike manner.” Yet that definition raises as many questions as it answers.
Generally speaking, “workmanlike manner” is defined as the way work is customarily done by other contractors in the community. Although this standard addresses the quality of workmanship, workmanlike manner does not require perfection. The standard is flexible enough to allow some errors without rising to the level of breach.
The problem litigants face is what exactly are the community’s standards? A litigant must resort to construction experts to establish whether the standards were met or breached. Undoubtedly, the party claiming a defect will have a well-credentialed expert prepare a report opining that the standards were not met. In response, the party claiming the work was acceptable will also have an impressive expert claim that the standards were met. When a court is faced with this type of issue, the determination must be made by the trier of fact– e.g. the Jury. Undoubtedly, this ambiguity creates substantial costs and risk for both parties.
Construction Industry Solutions
There are several construction trade associations that have drafted their own performance standards. For example, the Metropolitan Builders Association and the National Association of the Remodeling Industry (NARI) have performance standards for residential construction that specify what is, and what is not, considered a problem. These industry standards then specify what the repair should be and who is responsible for making the repair.
Prudent contractors should specify the specific standards for their work in their contracts to clarify what is a good and workmanlike manner for the project. Prudent homeowners should request copies of any performance standards that are listed in the contract at the time of contracting. Construction projects tend to run more smoothly when all parties are on the same page. If you come upon any construction disputes or need help writing your project contract contact us to see how we can help!