Published by MoASBO, October 2013
Building trades courses have been around for years. These courses serve a valuable purpose and offer real, on the job training for students who desire to enter the construction profession. Indeed, many school districts across Missouri recognize the value in these courses; however, few realize the potential liability associated with them as well. In many instances, the home or building built by the building trades class sells in excess of $200,000. School district administrators should view this as a potential $200,000 liability and act accordingly. Over the course of my time as an attorney, I have represented several districts in disputes that have arisen regarding homes that have been built by a district’s building trades class. During those disputes, I have noticed a pattern or practice on the part of each district which ultimately led to liability. This article will discuss those patterns or practices and hopefully help school districts avoid these pitfalls.
Contracts with Sub-Contractors
While constructing a home or building, there are several tasks/projects that an instructor may feel his building trades students cannot or should not perform. The instructor may feel this way either because his students lack the requisite skill to successfully complete the task or the task is determined to be too dangerous and the instructor feels a sub-contractor must perform the work. When this situation arises, it is of paramount importance that the school district enters into a contract with the sub-contractor it has hired to complete the task. In the disputes where I have been the legal counsel for the district, all but one of the districts failed to enter into a contract with a sub-contractor. Interestingly, in each of the disputes I have worked on, the major issue associated with the home was work performed by a sub-contractor. Had each of these districts entered into a contract with the sub-contractor, the district would likely have been able to shift the risk, i.e., liability, of the home onto its hired help. Instead, each district was left with little recourse other than to attempt to settle the matter with the homeowner. Further, had the district entered into a contract with the sub-contractor, it is likely the matter would never have arisen as the sub-contractor would know he had warranted his work and would potentially be on the hook should litigation follow. As a point of clarification, the simple fact that a district does not enter into a contract with a sub-contractor does not preclude the district from attempting to shift the risk, it simply makes it more difficult, i.e., more costly.
In an effort to change this frustrating pattern/practice, I have recommended to my clients that the district insert a class into the curriculum regarding the necessity of contracts and the general provisions contained within them for construction projects. By making it a part of the curriculum, it would force the instructor and the district to enter into said agreements. Further, the purpose of a building trades class is to educate students in all facets of constructing a home or building. Entering into a contract is a major part of the construction profession and failing to educate students regarding this process is a disservice to them and their future. Should an instructor not feel competent to teach a class regarding the necessity of contracts, many local attorneys would jump at the chance to speak with the district’s students as they recognize the value in potential future business with said students.
While district administrators may view entering into contracts as a headache and a cost they would not like to incur should they hire counsel to help draft the contract, I can assure each district official it is a headache worth incurring should resultant litigation arise.
In my experience, school district officials routinely forget that they must bid sub-contracted work out. Under Missouri law, a school district must bid construction projects that cost $15,000 or more. That is, if a certain project associated with the home costs more than $15,000 to complete and is going to be completed by someone other than the building trades class, school districts must bid the work. Indeed, Missouri districts must follow the standard procedures governed by state law and board of education policy, i.e., publicly advertise, open sealed bids at a public meeting, etc.
It should be of no surprise that the next frustrating pattern/practice discussed is hiring competent sub-contractors to complete the work requested. As noted above, in my experience, the work at issue was work performed by a sub-contractor. Indeed, sub-contractors typically perform the tasks which are of greatest importance to the building, i.e., pouring the building’s foundation, excavating the land to ensure proper grade, etc. In general, of the matters I have worked on, the school district hired a sub-contractor that had a poor reputation. Undoubtedly, the district hired these sub-contractors because they were willing to perform the work at a reduced rate. However, the age-old adage “You get what you pay for” generally rings true. While it may be more costly to perform the work at the outset, it is important that districts hire competent sub-contractors to perform the needed work. In addition to asking for references from the sub-contractor and checking with the better business bureau, District officials should also check Case.net to determine if the sub-contractor has been in litigation regarding prior work. Only after the district has performed an adequate background check should a sub-contractor be hired to complete the task.
Inspect Completed Work
Once any task is completed by either the building trades students or a hired sub-contractor, the work must be inspected. In most situations, a building inspector will catch problems associated with the home. However, district officials should not rely completely on the building inspector. Indeed, the building trades instructor should also be performing his own inspections of the home. He or she should determine in each instance if the students and sub-contractors followed the home’s blueprints. In a matter I recently handled, it was determined that a back patio was laid with an improper slope. As a result, rain water would pool against the home which led to water infiltration. As one could imagine, the water infiltration led to mold and resultant mold remediation. Had the patio been inspected at the outset by laying a level on the patio, it would have been determined that the patio lacked proper slope for rain water runoff and would have prevented the matter.
In each building trades dispute I have been associated with, the first thing I request from district officials is for them to send me all of the paperwork they have regarding the building of the home. In general, the only documentation I receive is a copy of a boilerplate sales agreement. This is troubling given the fact that the home or building sold for a considerable sum of money. In each instance, there should be documentation either in the form of agreed upon blueprints or emails between the buyer and the district regarding building specifications to avoid the buyer from later making claims that the district did not complete the building as requested. Further, the building trades instructor should take notes regarding conversations he has had with both the buyer and the sub-contractors hired to help build the project to avoid similar issues.
In sum, should school districts follow the general advice given above, they will be less likely to incur liability associated with building trades courses and will be more likely to complete successful transactions to the benefit of all in involved.
© 2013 Mickes Goldman O’Toole, LLC