Litigation

DRI Product Liability Blogging Continues: Green Acres Is The Place To Be ? Will ?Green Buildings? Be Fertile Ground For Novel Theories of Liability Against Building Product Manufacturers and Building Developers?

By Bruce Nye

Speakers are Sky Woodward, Dominic DiCicco and Jonathan Rodriguez.

     We begin with the propositions that:  (a)  the construction industry has been one of the greenest industries in the world;  (b) huge federal, state and local impetus for green construction;  (c) real estate industry highly prioritizes green construction.

    By green, we are talking about conservation of energy, water and materials, and a reduced impact on human health and environment.

    What is different for risk of liability?  New uses of materials and perhaps new duties.  Per Mr. DiCicco, what are the potential exposures from those new duties?  Nobody really knows.  An example, per Ms. Woodward:  1970?s energy policy resulted in construction of tight buildings.  HVAC was then designed to bring more outside air into the tight buildings.   This  resulted in increased  moisture and serious damage to building materials and serious liability, particularly in the southeast.  So we don?t know what the unintended consequences of green construction will be.  Mr. DiCicco analogizes to the Chinese drywall fiasco, where there was quick import not because of environmental concert, but because of a materials shortage, with a resulting serious liability problem.

    But per Mr. DiCicco (who is with Zurich), even with the uncertainties, the insurance industry is looking at this as an opportunity.

    Does the LEED process provide a road map for plaintiffs?  Possibly:  allergens in agramaterials  or ?sustainable? materials that result in early building failure.  The green materials aren?t ?tried  and true? over many years the way traditional materials are, so we won?t know for quite awhile how they will perform.

    When is a building a product?  California and Florida looked at this and concluded that a building is the sum of its component parts, and the manufacturers of those parts can be subject to product liability claims.  Jimenez v.  Superior Court (T.M. Cobb Co.) (2002) 29 Cal.4th 473.

Full post as published by CalBizLit on April 16, 2009 (boomark / email).