March/April 2024 - 117

BRIAN S. WOOD
PARTNER, SMITH CURRIE
LEGALLY SPEAKING
Not-So-Good Vibrations
A recent Florida
case illustrates how an understanding
(or lack thereof) of equipment used in
the construction of deep foundations
can affect a contractor's liability for
alleged construction-related damages.
In 701 Palafox, LLC v. Scuba Shack, Inc., a
commercial business owner, Scuba
Shack, sued a developer/contractor
constructing a multistory luxury condominium
complex on a neighboring
property, alleging that the contractor's
work damaged Scuba Shack's building
(apparently, not actually a " shack " ).
Scuba Shack further alleged that the
contractor knowingly and intentionally
or recklessly used vibratory equipment
that the contractor 's engineer had
warned the contractor not to use.
Accordingly, Scuba Shack sought the
right to amend its original complaint to
include a claim for punitive damages
against the contractor.
Because the developer/owner
understood that other waterfront
properties in the area were comprised
of fill containing construction debris
and other possible obstructions, the
developer engaged a geotechnical engineer
to perform a geotechnical investigation
of the site. Upon performing
the investigation, the geotechnical
engineer confirmed the presence of
subsurface debris with voids. Concerned
about possible settlement, the
geotechnical engineer recommended
that the new structure be supported on
piles. The engineer also recommended
that the contractor compact existing
soils to minimize settlement.
In making the recommendations,
the geotechnical engineer included a
warning against " using large vibratory
compaction equipment for compaction
of the existing subgrade because of the
proximity of the existing structures to
the north and south and the potential to
cause structural damage to these structures
using vibratory compaction. " The
concern about vibration and potential
damage to nearby structures also
informed the geotechnical engineer's
recommendation to install/construct
auger-cast piles instead of driven piles.
To support excavation and prevent
the undermining of nearby structures,
the contractor hired a subcontractor to
install sheet piles along and near the
property line. The sheet pile subcontractor
used a vibratory hammer to
install the sheet piles. During the
installation of sheet piles, cracks began
to appear in Scuba Shack's building.
An engineer hired by Scuba Shack
investigated and assessed the damage,
concluding that the building should
be demolished because of
damage to the building's
foundations. A property appraisal
performed on behalf of
Scuba Shack confirmed that
the repairs could not be
justified, given the value of the
property. Scuba Shack sued
the developer/contractor, alleging that it
was negligent by driving sheet piles,
causing vibrations that damaged Scuba
Shack's building.
After conducting discovery and
retaining an expert, Scuba Shack filed a
motion with the court requesting the
right to amend its complaint to include a
claim for punitive damages based upon
what Scuba Shack contended was gross
negligence on the part of the developer/
contractor. Scuba Shack's proposed
amended complaint alleged that the
installation of sheet piles was " so
reckless and/or wanting in care that it
constituted a conscious disregard or
indifference to the life, safety, and/or
rights of Scuba Shack. " Scuba Shack
based this allegation on the warning by
the developer/contractor's geotechnical
engineers against using vibratory
compaction equipment and an evaluation
of the geotechnical report by Scuba
Shack's expert.
After the trial court granted Scuba
Shack's motion to amend its complaint,
the developer/contractor appealed. In
considering Scuba Shack's motion, the
appeals court had to first decide the
standard under which it would review
the determination of whether Scuba
Shack made an evidentiary showing of
gross negligence. Based upon Florida
Statutes and interpreting case law, the
court determined that it would make
the determination " de novo, " without
reference to any legal conclusion or
assumption made by the trial court.
A lack of a full understanding of
geotechnical construction
equipment, means and methods
can affect your liability.
In performing a de novo review of
the evidence, the court focused first on
the fact that Scuba Shack offered no
evidence that the contractor used
vibratory compaction equipment on the
project. It is unclear from the published
decision, but it appears that Scuba Shack
and its expert confused or otherwise
incorrectly equated the vibratory hammer
used to drive sheet piles with
vibratory compaction equipment cited
in the geotechnical engineer's warning.
When confronted on the distinction
between a vibratory hammer and
vibratory compaction equipment, Scuba
Shack offered the alternative theory that
building damage was caused instead by
vibrations introduced by the driving of
DEEP FOUNDATIONS * MAR/APR 2024 * 117
March/April 2024

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