Contract Surety

Foreseeable Conditions?



The pace of climate change is outpacing updates to building codes, but contractors are not off the hook. If confronted with related claims, contractors are likely to face questions about “what they should have known,” given the ample availability of information. In other words, don’t leave “foreseeable conditions” out of project plans.


Responsibilities Amid Change

At its “Building Innovation Conference,” this year, the National Institute of Building Sciences convened experts to help construction pros understand how courts think about responsibility in the face of climate change: 


Courts determine liability and negligence in part by taking into account what a person should have known at the time, and today there is a great deal of information available about the increasing frequency and severity of extreme weather events, said Mika Dewitz-Cryan, vice president and risk management attorney at Victor…. “Compliance with the code or regulations involved is not in and of itself enough to satisfy that standard of reasonable care,” said Dewitz-Cryan, nor is compliance with normal industry practice enough….


Courts expect contractors and engineers to stay reasonably informed of developing trends in climate science…, said Yvonne Castillo, senior vice president … .Climate data illustrate the range of circumstances that builders must plan for and is readily available…“We don’t view models as predictive. We see models as helping demonstrate the general direction….Good engineering practices include consideration of foreseeable severe weather events, including any caused by alleged climate change.”

Overall, experts anticipate that there will be a big legal change related to “the principle of foreseeability,” and point out: Broadly, courts want to encourage good adaptive behaviors because they want society, the economy and the environment to be more resilient to expected shocks.” As builders work to adapt to “current and foreseeable conditions” related to a project, experts say they also need to think “holistically about adjacent properties,” and vulnerable populations :

Protecting vulnerable populations is another critical consideration, because there’s a strong recognition that not everyone has the resources to adapt to climate change….“A future plaintiff’s profile is going to matter,” Castillo said. “If you’re designing projects in areas where we have vulnerable populations — because of historically disadvantaged communities or in coastal areas or because of certain climate variables — then you’re going to have to think about that.”

Communicate and Document

It’s always been a wise practice for builders to communicate clearly about potential challenges with clients—and this goes even more now, given the threats brought on by climate change and extreme weather events:To protect themselves, construction pros must communicate a project’s vulnerabilities and relevant climate data to the client, Dewitz-Cryan said. It’s also important to document the conversation, including why the client decides, or declines, to proceed with your recommendations.”

With contracts becoming ever more complicated, it’s also more essential than ever for contractors and their teams to understand the contract deeply, before the shovel hits the dirt. This includes knowing the scope and milestones, as well as change and notice provisions. Ideally, clarity about change orders and solid processes for carrying out the agreed upon protocols prevent severe conflicts from interfering with the success of a build.


Ready To Get To Work?

Of course climate change also means that for the foreseeable future, our public infrastructure work is nowhere near done. For example, it’s increasingly clear that many of our surface transportation systems are not up to challenges from floods, rising sea levels and heat waves. Recently, eighty projects to make “transportation systems more resilient to extreme weather” were targeted across the country and will receive a total of $830 million from The Department of Transportation. The funds are unique in that they are the “first of their kind dedicated to transportation infrastructure resilience.”


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