MCLEAN, VIRGINIA — With the construction industry facing pressure from aging infrastructure, increasingly destructive weather, rising costs and tight budgets, innovation is no longer optional — it’s essential. But as contractors adopt tools like climate modeling and artificial intelligence to design smarter, safer, and more resilient projects, legal experts say it’s critical to understand and manage the legal risks that accompany these advances.

“Given this environment, innovation is going to be really important — not just as a competitive advantage if you operate in this industry, but it’s just becoming a basic survival skill,” said Yvonne Castillo, professional liability risk advisor at Victor, during her remarks at the recent Building Innovation 2025 conference hosted by the National Institute of Building Sciences. “But unfortunately, innovation does not come without risks.”

Castillo emphasized that while new processes and materials can bring value, they also present new legal vulnerabilities — and courts are beginning to weigh in on how far builders must go to account for climate risk, new technology, and evolving standards.

“Innovation isn’t just about doing something new,” she added. “It’s about doing it in a smart way. It’s about anticipating some of these risks that might be coming about, utilizing the best available science and always thinking about, well, what would a court or what would a jury, in retrospect, think was reasonable?”

Climate Modeling as Legal Defense

One area where innovation and liability intersect is climate resilience. As extreme weather events grow more frequent and severe, legal experts warn that simply building to code is no longer sufficient — either to protect infrastructure or shield contractors from litigation.

Casey Robb, president of C.F. Robb Consulting Services in Georgia, warned that local and federal agencies now recognize that code minimums fall short in the face of climate-driven threats.

“We have to build up our resources locally to address these issues,” said Robb. “Relying solely on minimum standards leaves the community significantly vulnerable, and it’s vital to move beyond these minimum codes and adopt advanced resilience codes for measures, and also get deep in the weeds on pre-planning.”

Castillo pointed to a growing body of case law where courts have ruled that builders must consider future conditions — like sea level rise or flood risk — when designing and executing projects. Citing lawsuits over the Gross Reservoir Dam expansion in Colorado, the Battery Park City Resiliency Project in New York, and a housing development in Virginia Beach, she said the legal precedent is clear: climate modeling isn’t optional.

“You can certainly, on your projects, ignore climate data, but it is our suggestion that based on the court cases we’re seeing and these early signs of how courts are reacting, it’s not the best way to proceed. It is not the most defensible position in court,” Castillo said. “Courts view [climate data] as reliable, credible evidence that you should be incorporating into your projects.”

She advised builders to explicitly document decisions around climate considerations in project contracts — especially if clients want to proceed without addressing climate risks.

“Make sure that everybody on the project knows that you are not going to be addressing major climate risk,” said Castillo. “Contracts matter, climate data matters, insurance matters.”

De-risking Emerging Technology

While climate resilience is increasingly seen as a legal obligation, innovation in materials and methods also carries legal exposure. Mika Dewitz-Cryan, vice president and risk management attorney at Victor, urged builders to use caution when implementing unfamiliar or experimental tools — including AI — in the field.

“Even when you’re working with familiar and tested products or materials or equipment, if you’re using it in a new and unprecedented way, it could introduce new hazards or dangers,” she said. “Sometimes a new technology fails, not because there’s something defective with that specific material, but simply because there’s a lack of established standards or knowledge about how something should be properly operated and maintained.”

Dewitz-Cryan recommended clearly assigning responsibilities in contract documents and flagging potential impacts on project schedules and costs when innovative tools are used. She also encouraged builders to work with third-party experts and testing labs to validate performance and mitigate uncertainty.

“Always consider consulting with experts for accurate insights. For instance, you might hire an outside firm to test the materials,” she said. “Prepare alternatives — always have a plan B.”

As contractors experiment with technologies like generative AI, they may encounter clients who prefer traditional methods. Dewitz-Cryan said such decisions should be made early in the design process — and put in writing.

“What’s considered innovative today is not always going to be considered innovative,” she said. “It’s important to stay up to date with what’s going on to ensure you’re not being left behind.”

Ultimately, the message from legal experts is clear: innovation can offer major advantages — but only if paired with risk management strategies that align with evolving legal and environmental expectations.

Originally reported by Julie Strupp in Construction Dive.