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Question DetailsAsked on 4/15/2014

Is a contractor liable for intalling poor concrete?

We had a new driveway placed in Aug 2013 and through the winter we started to see several areas that have "pops". I'm not talking 10 or 20 spots....more like 100+. Along with the pops there are several cracks as well. Our contractor basically blamed this on the place he obtained the concrete and they apparently aren't returning his phone calls. He said all he could do was to repair the pops and then put a sealer that has color in it over the entire driveway to hide his repair job. Other driveways that have been recently poured in our neighborhood have not had this problem. Our drive looks 20 years old. Is this an exceptable solution? What would you do?

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1) From your description, ASSUMING you did not use salt or hot water on it for deicing, sounds like it could be a bad mix, failed to put in the air entraining agent (or failed to order it with it), improperly floated it so too much cement paste was brought to the surface, added water at the site to make it more workable, or failed to cure it correctly. Normally, contractor errors or shortcuts are responsible for this, not poor concrete. With that number of popouts it sounds like inherently flawed installation - something an overlay or repairs will NOT cure permanently - you can expect more popouts within the next couple of years or earlier, so it should be replaced. Also, repairing the popouts does nothing about the cracks - assuming you are not talking about cracking right along the contraction joints, which can be washed out and caulked. (Contraction or control joints are intentional grooves formed, troweled, or cut into the concrete during or right after casting, to force shrinkage cracking to occur at that location, and with sealer board or flexible sealant to keep water out - typically located every 3-5 feet in sidewalks, every 5 -10 feet in outdoor concrete slabs depending on local temperature variations and slab thickness.


2) I hope you have written and photographic documentation on the progression of problems, and of your contacts with the contractor. Bad news for him but when he installs a product, especially one that is fabricated or assembled on site rather than brought in fully finished (like an appliance, for example) he absorbs the risk or liability for it failing to perform.


3) In general, he is liable for its performance. However, what does your contract say about warranty ? If there was an express warranty in the contract, then that normally (though not if in contravention of state or federal law) controls how long the product is warrantied for. In many states there is an implied warranty of 1 year for home construction work unless a shorter specific warranty is stated. Even without a warranty, a concrete drive with that type of problem is clearly not merchantable or fit for its purpose, so the principle of "implied warranty" or "implied merchantability" would apply.


4) Check your warranty, and if it is under warranty or there was not warranty, if he will not replace it immediately and completely at his cost, time to talk to an attorney about calling his bond, or suing.


5) To prove it is a contractor placement issue you might also have to pay about $500-1000 range to have a civil engineering company with a test lab core the concrete a couple of places and test trench a place or two along the side to check for thickness and subgrade conditions, and test the concrete cores for air entrainment, strength, mix continuity, excess flotation, etc. and then have their civil engineer issue a report on the construction and concrete. However, that result could also point to faulty materials - which while the contractor technically would be responsible for, could make a jury or judge decide it was beyond his control and let him off the hook, so that is a slippery slope to go down. Also, recovering testing and report cost in a suit is an iffy thing, so that is a lot of money to plunk into trying to ensure you win a suit for maybe say $3-5,000 for a normal drive ?


6) This is not something you want to let go, and your claim against the bonding company or via a suit for defective product and/or workmanship should be put in writing to him officially, in accordance with your state notification laws, ASAP because the longer you wait the weaker your case becomes.

Answered 3 years ago by LCD




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