Remember the days of the Polaroid (10-pack) and the Pocket Instamatic (in 12, 24, or 36 rolls)? When visiting your project’s construction site, you were probably very frugal when it came to what you would actually photograph. Polaroid’s were expensive and developing rolls and rolls of film could easily break your CA Phase budget.
Fast forward to today – 128 GB flash memory cards, time-lapse photography, and drones – we don’t think twice about taking 300 photos or hours worth of video on each site visit. With the Internet and the Cloud, we can store visual documentation – forever!
As with almost everything in our profession, there are potential risks associated with almost every act. When in doubt, always look to your Agreement(s) to determine what your duty requires of you during site visits. If it is silent on the subject of documentation, then you should, at least meet the Standard of Care – what would an A/E do under the same or similar circumstances in the same or similar locality. Finally, refer to your firm’s procedures and policies when it comes to site visits. If your firm does not have such policies, move it to the top of your “To Do List.”
When it comes to photography and/or videotaping your site visits – ask yourself these questions.
What should I be photographing or videotaping?
- Overall progress of the work – of the site and building/structure.
- Known non-conforming work – zoom in on the actual defect and avoid “contextual” shots.
- Avoid the desire to take 300 photos and/or hours of video of everything.
How should I document what I photograph or videotape?
- Include only those photos labeled as “non-conforming work” in your site visit report, which could also serve as a running “punch list.”
- Avoid the temptation of maintaining photos/videos not specific to the overall progress of the work or non-conforming work.
Should I review each and every photograph or frame of videotape?
- Review every photo, frame, and/or image and then delete those that do not adhere to firm policies.
How long should I retain such images or footage?
- At a minimum, maintain documentation as long as the Statute of Repose or Limitation remains in effect – whichever is longer.
Note: Recently, some courts have ignored Statutes of Limitation or Repose, especially when it involves government (federal, state, local) work.
- Review your Agreement(s) to determine whether the owner retains all rights to your instruments of service, which include any visual documentation of the project.
- Keeping documentation may carry risks but could also possibly save you from a claim.
Should I be more like a tourist or should my site visit be meaningful?
- Do not play a tourist – take your site visit documentation very seriously.
What can help me stay out of trouble? Remember these three (3) basic rules:
- Rule #1 – “30-30”
Your photo, video, or other images should be taken at 30 inches or 30 hundred inches away (that’s 3,000 inches, 250 feet, or over 80 yards).
- Rule #2 – Keep it private
Avoid posting videos online (e.g., YouTube) or images in the Cloud, on Twitter, Facebook, Pinterest, or the like – including as attachments to emails.
- Rule #3 – Adhere to #1, #2, #3, #4, and #5 above.
A Case Worth Discussing With Your Team
Consider the case where photographs were used against an architect and played a large part in finding the architect liable for defects created by the contractor, only to be overturned on appeal.[1] The dissenting appeals judge noted the following regarding the photographs taken by the architect:
- The architect reviewed the photos but failed to identify the defects which were clearly identifiable in the photos.
- When asked about the defects in the photos during the trial, the architect replied “It’s obvious now.”
- The architect’s failure to detect the defects in the photos represented a failure to “endeavor to guard” the owner against such defects and deficiencies.
- After viewing the photographic evidence, expert witnesses stated “[defects] should have been observed” because the defects were “clearly” visible.
- Therefore, the architect could and should have noticed the defects in such photos.
- The defects can be identified on photos taken by the architect in the course of providing their CA services.
- It is possible that no duty would arise if a defect is only visible from a certain vantage point or not clearly visible at all.
The result could have very easily gone the other way. Had those photos been taken at 30 inches, such defects would have probably been very apparent and chances of missing them during such a review would have been minimal. However, note the last bullet point which supports the position that if those photos had been taken 30 hundred inches away, it is doubtful that such defects would have been clearly visible.
Do not avoid visual documentation completely; however, be very careful when it comes to visually documenting construction sites and what can be discerned from such potential “evidence.”
So when it comes to visual documentation, remember “3-30-30”: 3 rules – 30 inches – 30 hundred inches. Say cheese!
[1] BLACK + VERNOOY ARCHITECTS, J. Sinclair Black, and D. Andrew Vernooy, Appellants, v. Lou Ann SMITH; Jimmy Jackson Smith, Individually and as Next Friend of Rachel and Grayson Smith; and Karen E. Gravely, Appellees. 346 S.W.3d 877 Court of Appeals of Texas, Austin. No. 03–09–00518–CV. | August 5, 2011.
For additional info, review Networking Works! Construction Administration and Site Visit Skills (February 2012) and Preventing Claims Through Effective Site Visits (August 2007).