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Does AI create additional liability on the jobsite?

I’m pleased to welcome Charles (Chuck) Cobb, former general counsel for construction manager William A. Berry & Son, to Newmetrix as our advisor on construction risk and insurance. He will be working with us closely as we help our customers understand how to best leverage our construction risk analytics data. Chuck's first contribution below explores how contractors can best use insights from AI to reduce actual and legal risks. And, if AI engines like Vinnie proactively detects risks on jobsites, what is a contractor's potential liability if accidents still occur? We’re excited to have Chuck on board to explore these questions and many other important topics for our customers and partners.  Josh Kanner, Founder & CEO, Newmetrix

Claims data freeze

“Give us all of your documents”, the claim lawyers will say. When a claim comes in, the litigation hold then puts a freeze on destruction of any discoverable information related to the claim.

Today, however, the word “document” no longer applies as most jobsite information does not exist “on paper”. For example, cameras are taking photos of your project constantly. Advances in project management software, mobile applications, IOT devices, and photo capture on smart phones, site cameras and drones have created huge piles of data on most construction jobsites.

Using data to help prevent claims

Now automatic analysis by artificial intelligence systems can uncover trends and even make predictions about safety and quality risks. With software like Newmetrix, jobsite photos can be automatically analyzed and indexed by trade, conditions, and identifiable hazards, helping construction managers to proactively remove identified risks before claims occur and facilitate claims investigations by making it easier to retrieve and share relevant visual evidence.

Establishing reasonable care

Inevitably, there will be claims. In defending itself and in establishing reasonable care, a company that gets sued will have video and photo ‘records’ that help tell a story. 

For companies and projects with dedicated efforts to preserve jobsite safety there will be all kinds of evidence of reasonable care. Some examples include safety pre-planning, training requirements, and participatory tool box talks with a job-specific safety focus. Having an automated system that is logging and analyzing jobsite images is a positive signal to a fact finder who will be tasked with weighing the steps taken and the conduct of the parties in determining levels of reasonable care.


Image courtesy of ENR. Construction worker with tabletWhen I was in house

When I was in-house general counsel at William A. Berry, there was concern about written “records” of safety walk-through findings which teams were capturing electronically on portable tablet. This was in the early days of field management software - it was a new concept. We insisted that each finding include an automatic and mandatory response field describing the corrective action taken.

Similar automated reporting and follow up can now apply in this new world of artificial intelligence based safety analytics. Mountains of visual data already exist on most jobsites and is discoverable by the next claims attorney. With AI, contractors can proactively identify opportunities to improve safety and avoid defects and "close the loop" by automatically triggering and recording communications to the appropriate project participants for management. As a result, jobsites are made safer and contractors can demonstrate a proactive and responsible management system in the event of any future claims. 

The record of ongoing monitoring is a reality. How that information is used (or ignored) will be weighed as evidence. Having a system that helps to document and manage that information should make it positive in the eyes of the judge or jury, not a negative. When the request comes to “give us all your documents,” innovative contractors can now turn over their mountains of jobsite photos while also showing the steps taken to proactively identify risks and take appropriate corrective actions where necessary to promote and enforce best practices in construction safety.

Written by Charles Cobb

Charles W. Cobb is a construction lawyer who, for six years, was in-house counsel with a large Boston area construction manager William A. Berry & Son, Inc. serving institutional, high tech and health care owners. Berry was acquired by Suffolk Construction in in 2007. Prior to that, he worked as an attorney handling commercial leasing and business law. At the start of his legal career, Chuck worked as a trial lawyer on insurance claims for both plaintiffs and defending insureds for carriers. Always interested in technological improvements to business practices, Chuck helped with field adoption and implementation of reporting with a tablet-based product developed by Newmetrix's CEO’s prior company.

View more posts by Charles Cobb.

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