By: Brian J. Pfeil
Technology permeates all aspects of our society, so recognizing how technology impacts our roles as attorneys is critical to keeping pace with the world we live and work in. Technological advances have noticeably impacted the construction industry over the last 10-15 years, from the project’s design process toits actual construction.
For example, 3D modeling in construction used to be relegated to large scale commercial projects because the time, space and materials needed to render a miniaturized 3D model was cost-prohibitive for anything other than a large-scale commercial project. The introduction of 3D modeling software to the construction industry now allows for the creation of accurate and detailed models for any size construction project and it can be done more efficiently and cost effectively. In addition, the 3D modeling software allows for the visual depiction of the project to be shared with the entire construction team—owners, architects, engineers and contractors—even if the project is in a remote location or members of the team are from different geographic areas.
Virtual Reality (VR) and Augmented Reality (AR) have recently taken 3D modeling to a whole new level by allowing the construction team to view the project as if they were there walking the project site themselves. Owners of projects are able to get a much better idea of what the finished product will look like when using VR and AR than they previously received from reading blueprints and construction drawings. Like 3D modeling at its early stages, VR and AR is still quite expensive to implement, and is primarily used by large companies for complex projects. However, if VR and AR follow the same technological cost trends that we have seen with other emerging technologies over the last several decades, the cost should of these resources will soon be more affordable and accessible to a wide range of customers.
The incorporation of detailed VR and AR into construction projects presents a challenge to construction attorneys. Whether the VR/AR model should be considered an artistic rendering of the project for which the contractor is not required to follow precisely, or as a detailed and precise standard for the contractor to follow like paper drawings and specifications, needs to be addressed on the front end of the project. Liability for errors in the VR/AR model also need to be allocated in the contract. Architects have traditionally been responsible for design deficiencies in construction projects, and the use of VR/AR in the construction industry signals a potential shift in that liability for lawyers to consider.
Similarly, the integration of drones into the construction industry also presents significant challenges for lawyers. Drones are used today for surveying land, documenting site conditions and construction progress, and making calculations about the construction site. Drones can decrease the amount of time required to produce a survey, but who is responsible for any inaccuracies that might arise in the drone-generated survey if the drone was not operated by a licensed land surveyor? Drones that are equipped with cameras can also be used to document site conditions and construction progress, so contractors and owners no longer have to hire pilots to fly them above the construction site to photograph it.
Drones are also used today to make site calculations, such as the surface area of a particular site and the amount of soil excavated from a site. But again, who is responsible for any inaccuracies if the calculations are wrong, or even perceived to be wrong? Do drones have to be routinely calibrated, like law enforcement radar equipment, for the information created by them to hold up in a court of law?
The construction team can use drones to maintain constant connection to the job site, and even allows for contractors to monitor their employees and workers. However, the employees and workers could perceive this surveillance technique to be an unwanted intrusion.. Given the existing labor shortage that already proliferates the construction industry, contractors might want to think twice about potentially irritating the existing and potential employees they have available to them.
The construction industry as a whole has been slow to change—the fact that contractors still work on handshake agreements is evidence enough of this. Moreover, construction lawyers still use the same standard form contracts that have been firmly entrenched in the construction industry for decades. The time-tested method of choosing and designing the project, then negotiating the contract terms for the construction of the project based on allocation of risk, has been used forever and is still used throughout the industry today.
While the method of documenting a construction project may be slow to change, advances in technology have already begun to change the way a project is constructed on the job site. Lawyers have the obligation to keep up with these changes and anticipate how these changes may affect how construction contracts are drafted and how disputes arising from construction projects are litigated in the future.
Brian J. Pfeil is a member of Davis|Kuelthau’s Litigation Team in Milwaukee. With over 22 years of experience, he handles disputes over title to land for national title companies and their insured owners and lenders as well as many trades within the construction industry. He can be reached at 414.225.1442 or bpfeil@dkattorneys.com.
This article was published in the January 24, 2020 issue of the Wisconsin Law Journal.