Where a building owner sued its contractor for negligence in driving sheet piling that resulting in building damages, the court rejected the owner’s motion to amend its complaint to add a claim for punitive damages based on alleged gross negligence.  Florida has a statute creating a legal right not to be subject to a punitive damages claim until the trial court makes a determination that there is a reasonable basis for recovery of punitive damages.  In this case, the geotech engineer warned contractor not to use vibratory compaction.  The contractor honored that advice and instead used pile driving and sheet piling.  Unfortunately, the building still suffered damages.  The Owner asserted that the use of the sheet piling was equivalent to vibratory compaction and this constituted gross negligence by the contractor.  The court reviewed the expert witness reports and concluded that the Owner didn’t come close to making the required showing of gross negligence.  The basis of the Owner’s gross negligence claim was the contractor used vibratory compaction equipment in disregard of the geotech’s recommendation.   No evidence was presented, however, to show there was any use of vibratory compaction.  And the warning not to use vibratory compaction didn’t put the contractor on notice that installing sheet piling would create a clear of present danger.  Indeed sheet piling was not even a compaction activity.  For these reasons, the Owner failed to demonstrate that it was entitled to assert a claim for punitive damages.  Palafox, LLC v. Scuba Shack, Inc., 367 So. 3d 624 (2023).


About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk Report, Vol. 26, No. 1 (January 2024).

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