Construction Law COSC 463

Construction Science Law Exam 1. Common Law - Civil and contract law basics with specifics for construction.

Which of the following are examples of discovery tools used in pretrial procedures? (Select all that apply)

1. Interrogatories

2. Requests for Admission

3. Voir Dire

4. Depositions

5. Motions for Summary Judgement

1. Interrogatories

2. Requests for Admission

3. Depositions

A lawsuit begins when the _____________ is filed. 

Complaint

The primary goal of civil law is to ____________________.

Make the injured party whole

Party who files lawsuit

Plaintiff

Party who gets sued and must defend lawsuit

Defendant

When a witness answers questions under oath before trial

Deposition

When a Jury Decides Your Case

Trial

When someone takes the trial result up to a higher court

Appeal

What is the correct order of events in civil litigation? 

Start litigation

• Complaint

• Service of process

• Discovery

• Trial

• Appeal

End of litigation

Person/entity who listens to evidence at trial and makes findings of fact and law

Judge

Person/entity who listens to evidence at trial and makes findings of fact only

Jury

The process of collecting evidence and identifying witnesses is the _________ phase of a lawsuit.

Discovery

Which branch of government is primarily responsible for interpreting the law in the United States?

The judicial branch

______________ is the omission or commission of an act that a reasonably prudent person would not or would do under a certain set of circumstances.

Negligence

Under ______________ the plaintiff may bring a claim but any damages award is reduced by the plaintiff's percentage of fault. 

comparative negligence

To be liable for an intentional tort, the tortfeasor (the person committing the tort) must have intended the harm that the injured party suffered. T or F

False

In Texas, a premises owner owes no duty of care to a trespasser under any circumstances. T or F

False

During the construction of a skate park, Tony slips in a small mud puddle and bumps into Bam from behind, which results in Bam falling and dislocating his elbow.

Based on the scenario above, which of the following is true? 

Bam can maintain a negligence action against Tony if Bam can show that Tony owed Bam a duty of care and that duty was breached.

From the options below, please select all required elements of a negligence claim.

• causation

• duty

• damages

• breach

The following are the basic categories of torts:

• intentional torts

• strict liability

• negligence

To successfully sue someone for the tort of negligence, there must have been a breach of contract. T or F

False

In the context of the economic loss doctrine, what does "privity of contract" mean?

A legal agreement (contract) between two or more parties

Effectively, the Economic Loss Doctrine means that a General Contractor will be unable to successfully sue the Architect for lost profits on a job, unless the GC and Architect are in direct contract with each other. T or F

True

Texas applies the majority rule of "Modified Comparative Negligence" to damages claims for torts. This means that: 

a plaintiff can recover damages minus their percentage of fault as long as the plaintiff is 50% or less at fault

 The Economic Loss Doctrine creates a dividing line between tort claims and contract claims. T or F

True

Despite the Economic Loss Doctrine, a General Contractor may be able to successfully sue an Architect for which of the following?

• Physical injury caused by the Architect's negligent plans/specs. 

• Lost profits on a job due to the Architect's negligent plans/specs, but only if the Contractor and Architect are in privity of contract.

What type of civil claim did Eby make against LAN/STV that was the subject of the Texas Supreme Court opinion you read for class? (Hint: this claim was specifically barred by the Economic Loss Doctrine)

Tort Claim

What is the Economic Loss Doctrine?

A principle that prevents recovery of purely economic losses arising out of a contract in tort actions

Under the economic loss doctrine, a party cannot successfully sue another party for breach of contract if the only damages are purely economic losses. T or F

False

What type/category of damages are recoverable in a certain tort claims but not in contract claims? 

punitive damages

Eby settled with DART for several million dollars, and then won a jury verdict against LAN/STV awarding Eby additional damages; however, the TX Supreme Court overturned the judgment against LAN/STV on the basis that Eby did not prove that LAN/STV committed a tort or a breach of contract. T or F 

False

Parker's Plumbing ("Parker's") submitted a bid to Booth Builders ("Booth") for all the plumbing work on a new office building that Booth was constructing for Angela Montenegro. Parker's and Booth subsequently entered into a written contract, which was signed by both parties. The written contract stated that all faucets were to be oil-rubbed bronze, but Parker's installed brushed nickel faucets because that is what Parker's and Booth had discussed using during the bidding process. 

Based on the scenario above, which of the following is true?

Booth can sustain a breach of contract action against Parker's because Parker's breached an unambiguous term of the written contract.

Which of the following is a situation where a court would most likely order specific performance as a remedy instead of monetary damages? 

A contract involving the sale of a unique piece of real estate

Generally speaking, the order of events in the formation of a contract are:

• offer

• acceptance

• exchange of valid consideration

Which of the following is NOT a requirement for a contract to be legally enforceable?

Written agreement

What is the purpose of the doctrine of substantial performance in contract law?

To allow a contractor to recover under the contract even if minor defects exist

What is a 'patent ambiguity' in a contract?

An ambiguity that is readily apparent or obvious

__________________ is an equitable remedy that requires reasonable payment for valuable goods/services provided and knowingly accepted, despite the lack of an enforceable contract.

Quantum meruit

Why did the court reject SOAP Engineering, LLC's claim that Infiniti Integration Services Corp.'s recovery for breach of contract lacked legally and/or factually sufficient evidentiary support?

An offer to provide payment for services was accepted by performance

Which of the following statements describes the legal concept of promissory estoppel?

A party that relies on a promise to their detriment can seek compensation, despite lacking a valid contract

The rule of substantial performance is an equitable doctrine adopted to prevent a contractor who has only substantially completed, but not fully completed, a construction contract from suing on the contract; instead, it relegates the contractor to a cause of action for quantum meruit. T or F

False

Broad form indemnification allows a contractor to be held liable for the owner’s negligence, even if the owner is 100% at fault, and many state legislatures have outlawed this form of indemnification. T or F

True

How can a contractor limit risk related to liquidated damages?

Negotiate a lower daily rate and/or a cap on total damages.

Why is it important to get all agreements in writing?

• People may forget, deny, or misinterpret verbal agreements.

• Written agreements help prevent misunderstandings.

• Written agreements can help in legal disputes

• Projects are complex and involve many parties

Liquidated damages are established to compensate for losses caused by delay in reaching substantial completion. T or F

True

Why is it important to read the entire contract before signing?

You might find terms that disadvantage you.

It’s okay to ignore "boilerplate" or standard contract language when reviewing a contract. T or F

False

A waiver of consequential damages mitigates against having a claim made against you for lost profits. T or F

True

Indemnity is a mechanism whereby one party provides financial protection to another pursuant to the terms of the specific indemnity agreement. T or F

True

“The Contractor shall indemnify and hold harmless the Owner and all its agents from and against all claims, damages, losses and expenses, arising out of or resulting from the Contractor’s work whether it is caused in whole or in part by the negligence of the Owner."

The above clause is an example of a(n) ____________ indemnity clause.

Broad form

What should you do when there are small changes or promises made during a project?

Get agreement to the changes/promises in writing.

Consequential damages, as opposed to direct damages, can include _______ , loss of use, and loss of business reputation.

Lost profits

What is the role of the U.S. Constitution?

It establishes the framework for government and limits its powers. It divides government into branches that make, enforce, and interpret laws.

Where do most laws in the U.S. come from?

Congress (federal) and state legislatures. They create statutes that courts later interpret.

What role do courts play in the legal system?

They interpret laws and apply them to cases, making judicial decisions.

Do businesses have rights in politics?

Yes. Businesses, like individuals, can influence the political process through contributions, lobbying, and supporting judges aligned with their interests.

What does Article I of the Constitution do?

Gives legislative power to Congress (House + Senate) to make laws and represent the people.

What does Article II of the Constitution do?

Grants executive power to the president, who enforces laws, with the help of the VP and Cabinet.

What does Article III of the Constitution do?

Establishes the judiciary (Supreme Court + federal courts) to interpret and apply laws.

How does someone become a federal judge?

They must be nominated by the president and confirmed by the Senate.

What was the importance of Marbury v. Madison (1803)?

Chief Justice John Marshall established judicial review, the power of courts to decide the meaning of the Constitution and declare government actions unconstitutional.

What is judicial review?

The ability of courts to strike down acts of Congress or the president if they violate the Constitution.

What is a presidential pardon?

An executive order that cancels or reduces a criminal sentence.

What is federalism?

A system dividing power between the federal government and state governments.

How many separate legal systems exist in the U.S.?

56 (50 states, federal, D.C., and territories). Each has executive, legislative, and judicial branches.

Who has powers not listed in the Constitution?

The states (10th Amendment).

What is jurisdiction?

A court’s legal authority to hear and decide a case.

What is a tort?

A civil wrong other than breach of contract (e.g., negligence, defamation, etc.).

What types of cases go to federal courts?

Constitutional/federal law issues, or cases involving diversity jurisdiction (state law cases between parties from different states with >$75,000 at stake).

What types of cases go to state courts?

Most civil lawsuits, torts, contracts, and business disputes.

What is a trial court?

The first level of court, where evidence and testimony are presented to determine facts.

What is an appellate court?

A higher court that reviews trial court decisions for errors in law or procedure.

What is the U.S. District Court?

The federal trial court where civil and criminal cases start; there are 94 districts.

What court comes after the District Courts?

The U.S. Circuit Court of Appeals, which handles appeals.

What are state trial courts of general jurisdiction called?

Superior Court, Circuit Court, or District Court (varies by state).

What is standing?

A constitutional requirement that a plaintiff must show a real injury or stake in the case. It ensures courts only hear actual disputes, not hypothetical questions.

What does Article III allow courts to hear?

Only cases and controversies — not advisory opinions.

Pretrial order

1. complaint

2. summons

3. answer

4. reply

5. motion to dismiss

6. discovery

7. motions for summary judgement

8. trial

What is a complaint?

A legal document by the plaintiff that identifies the parties, facts, and alleged legal violations.

What is a summons?

An official notice that a lawsuit has been filed, requiring the defendant to respond.

What is a class action lawsuit?

A lawsuit where many plaintiffs with similar claims join together because it’s impractical to file individually.

What is discovery?

The pretrial process where each side gathers information to avoid trial by surprise

What are 4 types of discovery?

1. Request for admission (admit facts)

2. Interrogatory (written questions)

3. Request for production (documents/evidence)

4. Deposition (sworn witness testimony)

What is a motion?

A request for the court to decide an issue (e.g., dismiss a case, rule on evidence).

What is a default judgment?

When a defendant fails to respond, the plaintiff automatically wins.

What is motion for summary judgment?

A decision without trial because no factual disputes remain; common in favor of defendants.

What is an affidavit?

A written statement made under oath.

What percent of cases settle before trial?

About 90%.

What is voir dire?

Jury selection, where potential jurors are questioned about biases.

What are opening statements?

Previews of the case presented by each side (not arguments).

What is the burden of proof in civil cases?

Preponderance of the evidence (more likely true than not).

What happens if a jury deadlocks?

A mistrial is declared.

What is res judicata?

“A matter already judged” — a final decision prevents refiling the same lawsuit.

What is a tort?

A civil wrong (other than breach of contract) that causes harm or loss.

Someone who's been wronged and it's not a breach of contract

• Theft, car accidents, slip-and-fall incidents.

What is ordinary care?

Acting with common sense and caution that a reasonable person would use in similar circumstances.

• Looking both ways before crossing the street on a bike.

When you don't have ordinary care it's negligence.

What is negligence?

Failure to exercise ordinary care, causing unintentional harm.

What are the 4 elements of negligence?

Duty of care, breach of duty, causation, damages.

What is gross negligence?

Extreme disregard for the safety of others, more serious than ordinary negligence.

• Ex. Drunk driving.

• Make sure you have extremely good insurance.

•  if somebody has not actually been harmed/ damages there is no case you have to have evidence.

What is an intentional tort?

A wrongful act done on purpose.

• Assault, trespassing.

What is premises liability?

The legal responsibility of property owners for injuries on their land.