By: Amanda Parker Baggett

Stop! Before you make those repairs, there are some things you should consider. Otherwise, you could find yourself down the road facing claims that your repairs destroyed evidence of the defects.

Florida courts have recognized the importance of preserving evidence of defects, and courts can impose sanctions against parties that fail to do so. These sanctions include: striking pleadings, entering defaults on the issue of liability, exclusion of expert testimony, the imposition of evidentiary presumptions and adverse inferences, and even dismissals of claims.

So just what is the scope and extent of the duty to preserve evidence of defects? There is no hard and fast answer, but Florida cases dealing generally with destruction of evidence claims reveal several important questions that you should consider prior to making repairs:

  1. Is the repair work immediately necessary to prevent further damage to the surrounding structure?
  2. Is the repair work immediately necessary to protect the health, safety, and welfare of the owner?
  3. Has the potential defendant been advised of the defect, including the exact nature of all possible claims?
  4. Has the potential defendant been advised as to the scope of repairs recommended by experts?
  5. Has the potential defendant been advised as to when the repair work will take place?