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Recording Damage

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Possessing a clear and unambiguous record of construction activities and vibration damage is of the greatest importance in pursuing any damage claim. This page discusses some of the kinds of documentation that can be helpful. Note that you will need as much documentation as you can get, whether or not you have to litigate to get your damage covered. Indeed, you can reduce the chances of litigation if you have enough documentation of the right types. The recommendations which follow assume that you might have to litigate, simply because it may be much to your disadvantage to begin documenting only when you realize that litigation might be necessary.

Purpose of Documentation

Documentation has several purposes. First, it provides a clear record of the nature of the damage, the timing of its appearance and its progression with time. Second, it allows you to correlate the appearance of the damage with ongoing construction activities to help establish the causal link. Third, it provides a memory backup for a claim that may well take years to get resolved, especially if the damage is extensive. Fourth, it is necessary if your damage is so severe that you are forced to litigate the claim, although litigation should never be your first choice to resolve any dispute. Without good documentation, your claim is virtually certain to be ignored.

Use What You Already Have

Because so many devices (cell phones, tablet computers like iPads, video cameras) have the capability to record images and video, most people have all they need already to document both the condition of their homes and ongoing construction activities. You should record at the highest resolution of which your photo or video device is capable, since you may find it necessary to zoom the video or photo to bring out relevant features. I prefer video cameras which record raw video (AVI or similar formats) to DV tape or other medium to those which record compressed MPEG video to device memory. The compression process loses some resolution and creates tiny compression artifacts which may become readily visible when you zoom in on the photo or video to show details. However, if you see something which needs to be recorded immediately (construction operations or cracking in your home), use whatever device you have at hand which is capable of photos and video. Even less than optimal evidence is far better than losing that evidence while searching for a better device.

Recording Your Damage and Construction

You should begin recording the damage to your property the moment that you note an unusual amount, especially if you suspect that construction may be responsible for it. For many people, photography or videography are readily accessible means of documenting the type and locations of damage. I prefer high quality videography over photography, since you can document the location, time and extent of damage by narration on the video. Individual frames from the video can be easily extracted when still photos are needed. The video narration saves the need to keep a separate log of the same information for still photos.

To the extent possible, your video narration should be confined strictly to the necessary facts of the situation (date, time, nature of activity, damage site, etc). You will not enjoy having any angry or sarcastic comments you make played at trial, if you have to litigate your case. If your camera automatically records date and time on the video (or you can enable it to do so), you need not duplicate this information by narration. You should not talk over construction-related noise, beyond any absolutely necessary narration of time, date and location. Construction noise may turn out to be more important in a litigation context than your conversation.

When you record damage, pay attention to getting clear images of both the damage and its context. Close-up images are good for seeing details, but in a few months you will have probably forgotten where, exactly, you recorded them. Images which allow you to place the location well are often not sufficiently detailed to understand the nature of the damage. Make sure you record at the highest resolution of which your camera or video camera is capable. In my view, it is best to use a camera which records at its full, uncompressed resolution. For photos, this means using the RAW format, rather than JPEG, and setting the camera to its highest resolution. For video, this means using a video camera that records at its highest resolution to digital or analog video tape, rather than one which records compressed MPEG files to an SD memory card. By its nature, compression of photos and video to JPG and MPEG file formats loses some information permanently. Cell phones can record video on an emergency basis, but dedicated videocams recording to digital video tape or DVD are better for recording video for more than a minute or two at a time.

Continue recording newly appearing or changed damage for at least 6 months after the end of the construction. Once the house has been stressed by vibration, cracks will likely to continue to form for some time after the end of the project. Document the new cracks as they occur, noting the date of appearance. You can note any changes to older cracks that may accumulate with time, by placing dated pencil marks on the wall indicating the end of the crack at that date. You can also place the same information in a notebook, with a careful description of the crack location, so that it can be distinguished from others. Since cracking will continue for some time (at least six months), it is probably best not to attempt damage repair (see CVDG Pro) until the cracking and any other damage becomes stable.

Most people who have video cameras have some sort of video editing software (e.g. Pinnacle Studio, Sony Vegas) included with the camera. Windows includes a limited capability video editing program, called Windows Movie Maker, as well. One of the most valuable things you can do with your video is to use it as a source of still photos by getting "frame grabs". Most video editing software will allow you to get these. You will also need editing software to create DVD's of your video for litigation production (CVDG Pro), if you have to sue. Some really capable editing software also allows you to zoom in on video for better viewing and filter the sound track to allow construction sound to be better heard over any extraneous noise.

Mapping the Damage

Because of differences in effective distances of different kinds of vibration interactions with the home, the value of mapping the damage becomes obvious. The simplest way of doing this is to take a floor plan of the home and walk through, noting each site of damage on the floor plan. Such a map is helpful in so many senses that most people should take the time to do one, dating the map when you produce it and updating it over time.

Viewing and Using EXIF Data


EXIF Photo Data

Both digital cameras and digital video cameras record automatically specific information in the saved files ("EXIF" - EXchangeable Image file Format - data) which include the camera used, the time the images were recorded (taken from the camera clock) and much other useful information. This information can be viewed in Windows Explorer (see example at right) or just about any video editor or image processing program. To view your photo EXIF information in Explorer, right-click on the file name, choose Properties, then the Details tab. This EXIF information is a good way to find out the true dates of recording of digital images, since the computer file dates may not reflect accurately the date/time of recording. Note that one can remove the EXIF information from digital images in Windows; if digital photos or video are produced to you without such information, you should question their authenticity.

Damage to Neighbors' Property

The first question most people will ask about construction damage claims is whether there is damage to other nearby properties. It is a good bet that most construction companies will deny any such damage, whether or not such a denial is factual. In one case with which I'm familiar, a construction company witness repeatedly denied under oath any other damage claims, until faced with written complaints from neighbors and records of past legal actions against the company. In this example, the number of additional complaints increased from 0 to at least 6 in about ten minutes, when that witness was faced with proof of other complaints.

While you should not make a point of trying to stir up litigation, as this is never the best solution, you should make every attempt to inquire if your neighbors have noticed any damage to their property. Chances are that they will neither have looked for nor noted damage. So, you should be prepared to tell them where and what kind of damage for which they should look, based on the type of damage you see in your own home. The CVDG page, Recognizing Damage, has tips about what you should look for in a vibration damage situation. In my experience, even those with substantial damage (over a hundred damage sites) will not be aware of it. If they are, they will not be able to make a causal link to construction, because they were not present during the construction hours. Several of my neighbors were convinced that they had no damage at all from the construction vibration, but came back later to report that he had more than 100 cracks traceable to construction vibration; by the end of the construction, they had many more.

If your neighbors have damage for which they would like to seek reimbursement, they should make a formal written complaint to both the contractor and the sponsor or funder of the construction work. Written complaints cannot be ignored. They can be a great help in protecting the rights of the homeowner, because the existence of such complaints can be a subject of questioning of the contractor.

If the neighbors make such written complaints, try to get copies of them for your records. If you can get them to do so, it's not a bad idea to have neighbors write a document in their own words describing any vibration damage they have and how it might have occurred based on what they saw and heard. Make sure they sign and date it, and, if you want to be really careful about it, have it witnessed and notarized. It may not be possible to use such a document at trial, unless the neighbor is willing to testify at the trial. But, it can be very useful in keeping dishonest contractors from making "he is the only person that complained" statements. Keep in mind that, because of possible disclosure-related decreases in their property values, some neighbors will be unwilling to admit even obvious damage to their property. For the same reason and, perhaps, others, neighbors may also be reluctant to support your attempts to resolve a damage claim.

If nearby houses go on the market during the construction or in the few months immediately thereafter, that can be a perfect opportunity to examine those homes, especially before they have been prepared for sale. Since houses are often painted prior to sale, the effect of painting is to temporarily disguise some of the cracking in drywall. Ask for permission to photograph damage in neighbors' homes. Most will agree to that. Offer them copies of the photos you take.

Your evidence of damage to other properties may or may not be directly admissible as evidence in a court case, but will strengthen your position in trying to settle your claim outside the court system. Also, having photos of damage to other homes in the construction area may force the defendant to seek a motion in limine to exclude all that evidence from the trial. Even if that evidence is excluded, the filing of such a motion will indicate to the judge that your claim is likely legitimate, given the widespread damage. Having the trial judge recognize the credibility of your claim can be helpful in many subtle ways during trial, even though the judge isn't actually biased in your favor.

Documenting Construction

Just documenting the damage will usually not be enough to establish your claim. You need to keep a record of as much of the construction activity as you can, particularly any actions which you believe may be responsible for causing or worsening damage. Construction company employees can often forget about their own actions, when it is in their interest to do so. Again, videotaping is an excellent way to do this.


Construction Equipment In Use

Most vibration damage claims could benefit from greater documentation of the construction. Often, the claimant has no documentation of the construction at all, aside from witness reports about small parts of the construction. The contractor may have some documentation in the form of photos or videotape, but it is usually limited and you may not be able to get it at all without a court order. It often takes a great deal of time, money and work to obtain such orders.

Because they work during the day, many people cannot be watching the construction all the time, unless they have security cameras pointed toward the construction that can record full-time. Of course, such constant recording means you have a huge volume of video to sort through and, if it comes to litigation, produce to the opposing side. If you can't record full-time, then you should try to record a representative cross-section of all construction operations and equipment, with particular emphasis on occasions and operations which you believe may have caused or worsened damage. If you feel vibrations in your building, that's usually a sign that you should record for the duration that such vibrations persist.

Because security cameras have become so common, both in commercial and private settings, don't discount the possibility that one of your neighbors might have security footage that may be helpful to you in documenting construction procedures, even if you don't. You may also have such video recordings from your own security system. To prevent loss of this resource, try to find out as soon as you recognize that there may be a damage claim whether such security video is available from other people and, if so, whether you can get copies. Some people and businesses may be reluctant to give you such footage, so your attorney may have to subpoena it or work out an arrangement where it can be viewed and relevant sections copied. If you are doing your own monitoring (see CVDG PDF versions for how-to information), make sure that your tablet or cell phone monitoring device clock is set identically to that of your security system, so that you can trace individual vibration events observed on the device to construction activity seen in the security video.

If you have a problem with vibration damage, it is wise to document on photos or video every kind of equipment used in the work, with sufficient detail that one can read the contractor logo, equipment manufacturer and model number of the equipment used, all of which are usually readily visible on the equipment. The model number allows you to find online the specifications and, perhaps, the operating manual for the equipment. These will be helpful in understanding both vibration records (e.g. correlating the primary frequencies of compactor vibration with the vibration records) and the way the equipment was used in your area. They are usually available on the Internet free or for a small fee in PDF format from the manufacturer of the equipment. Specifications and manuals can be important resources in proving misuse of equipment.

Make sure that you get both close-up and perspective shots as you did in recording damage. Recording the people carrying out the operations is just as important as recording the operations themselves. In one case with which we are familiar, several construction people testified under oath that people in their company would "never" do things which they were captured repeatedly on video actually doing or watching being done. If you have to take a day or two of vacation from work to record critical operations (pavement removal, pavement and/or soil compaction, pile driving), it may turn out to be the most important time you will ever take off from work.

In documenting damage, you should make every attempt to avoid direct interaction with or visibility to the construction crew. If you interfere with their activities or even if you simply make your videotaping or photography obvious to them, you could face a number of undesirable results. You are also likely to find that you will cause the crews to modify their activities for as long as they can see you.

If they know you have filed a claim, construction crews may become outright hostile. In one construction damage situation, people on the construction crews gave obscene gestures on multiple occasions to the neighbors, even when they were inside their homes, several of which occasions were captured on video. On another occasion, when vibratory compactor use was causing very large vibrations, a notification of the construction crew produced not only no reaction, but no acknowledgement of my presence, as recorded on video. These recorded incidents made for an interesting comparison opportunity at trial when the contractor witnesses were talking about how much concern they had for the people living along the street.

When You Have No Construction Documentation...

Often, people find damage late in the construction project - or even after it has finished. In that circumstance, there is usually little or no accessible documentation of the construction and how it was done. However, you may still have some options for documentation if you get a free copy of the computer software Google Earth. Google Earth provides satellite images of the nearly the entire land surface of the planet (see at right), at resolutions of about a foot in most populated areas. These can be used to determine distances, as shown in the screen shot. Earth also provides ground level views of streets in most towns (see at left below for ground level screen shot image of same area). Finally, it also provides the capability to look at older satellite and ground level views in its "Historical Imagery" feature.

More often than not, any construction project lasting more than a couple months will likely have been photographed by satellite; ground level views may also be available. These can be extremely valuable, even though they only depict one, or a few, points in time. The ground level views can be used to stitch together panoramic views of the construction process. Anyone involved in a construction vibration damage situation should get and learn to use Google Earth. It is simply invaluable.

Even if Earth doesn't have any useful photos, you may be able to get better-timed ones from other sources of satellite imaging, like Digital Globe and Spot. A useful compendium of satellite imaging sources is also accessible free online.

Documenting Vibration Monitoring

Vibration monitoring is commonly done after a complaint of damage1 and may be done prior to job start, if the work is Federally-funded. Sadly, vibration monitoring reports done on behalf of contractors may not be unbiased; the work may also be performed poorly (as in the example at left) or even, with a specific result in mind. If vibration monitoring is done on or near your property, you should photograph and/or video each and every installation, both as a whole and with a close-up showing the transducer head and its immediate surroundings. If your camera does not record dates and times on the photo or video, make sure you keep a log of them. To the extent that you know them, note the approximate times of installation and construction work start and exact seismograph locations with respect to fixed landmarks or by GPS.


Seismograph Installs Proof Sheet

Your documentation may be the only reliable record of how the monitoring was performed. Documenting seismograph installations may turn out to be critical in combating unsupported (or false) assertions made by the monitoring firm. Since construction work starts early in the morning, most people can record the installations before they leave for work.

Meetings, Phone Calls, Conversations

From personal experience, I believe it is a good idea to videotape every meeting you attend with people from the opposing side which deals with the damage or construction. This includes visits by "experts" to view your damage, especially those hired by the construction company or their insurer. The probability is high that you will wish you had videotaped such meetings and visits, if you don't do so. Keep a record of exact times of these visits. Also keep notes on relevant incoming calls which include the caller, time and subject of conversation; exact call times are easily gotten from Caller ID, if you have it. These call records should go into your timeline narrative (see below).

Other Documentation

You should have more than just videotape and photos. These are extremely valuable, but you may see things that are not recorded. Also, if you have lots of images or video, it may be hard to locate specific information if you have to go through all the video each time you need some piece of information. It's an extremely good idea to go through all your video and images and "index" them in a database or spreadsheet. This will save you an immense amount of time going through video to look for various events. With such a searchable index, it's "one and done". You should include in the index at least fields for date, time, location of item (DVD timing, file name, etc), a short description, a standardized set of keywords and a special field for comments. If you have lots of video, it will take you a lot of time to do this, but will save you immense amounts of time later when you need to find specific clips.

In most projects, some kind of pre-construction survey will be done by the contractor. Sometimes, this is comprised of nothing more than a contractor employee walking or driving by your house recording video of the outside condition of the house and property. A far more valuable pre-construction survey will involve the contractor seeking permission to come into your home and videotape or photograph its interior and exterior condition. You should only allow such an interior inspection under certain conditions which you control. The conditions should include explicitly that you are provided a copy of the inspection video or photos within a specific period of time after the inspection (see at left for example). You can find some example documents that you could use to document these conditions and agreements on our Conditions Documents (CVDG Pro) page. I strongly advise that you use these or similar documents. Such signed documents may be your only leverage in getting copies of the inspections, short of an extended battle in a lawsuit. Even if you have no damage from the ensuing construction, the pre-construction survey can be valuable to you for insurance documentation.

The contractor may record other video or photos during the construction. If you have to sue, you should include provision of copies of the contractor video and photos in any production requests you make during the discovery period of the lawsuit. In my own case, contractor video helped invalidate several of the claims made by its vibration monitoring technician.

For large projects, especially public infrastructure ones, a project web site with web cam photos or job photos may be available, too. You should make it a priority to investigate regularly the content of such a site if you believe your home has been damaged, or could be damaged, by the work. If you find useful materials, output them to PDF files as described above to maintain a permanent record. Content relevant to damage causation may disappear from the site if you wait too long to create a copy.

Use a Timeline Narrative

You should also start what I'll call a "timeline narrative" (see graphic at top of page for an example of the layout). In this narrative, you will record everything of interest, including appearance of damage, construction activities, approximate times of any particularly large vibrations felt, conversations, meetings, damage assessment visits to house, dates and times of phone calls (from Caller ID if you have it), etc. that occurred on a given day. This narrative should be as factual as possible, lacking any extraneous comments about the motivations, parentage or unsavory habits of those whose actions are recorded there.

Don't worry too much about perfect grammar or spelling; the important thing is to have an independent record to supplement your video/photo records. Don't worry about recording every detail in the narrative; just indicate those matters that you see as important on that day. Although they should not be the focus of the timeline narrative, all word processors allow you to include photos and other graphics in the appropriate locations, if they are necessary to support what you write. It need only be one or two paragraphs per day, but you should start it as soon as you realize damage has occurred and continue it every work day (and any weekend day on which notable events occur) for at least as long as the construction lasts in your area. Such a timeline will be invaluable to you in keeping track of facts and events, especially if you have to litigate your claim.

Remember that any documentation you generate could be produced in litigation, so keep your comments and writings factual and to the point. Avoid outright speculation of any sort. If you don't know it as fact, don't include it in anything you write. If your neighbors tell you anything relevant to the damage, document that conversation, too. Give your attorney a copy of the narrative for his own use; this will help protect it from litigation production under the "attorney-client privilege" exclusion.

If you live in an earthquake-prone area, you will want to get complete records of earthquakes for your area in the month or so prior to the damage appearance. These are easily obtained from the Internet. Such records will help address counterarguments (CVDG Pro) that your damage was caused by a minor earthquake, rather than vibration from construction. You may also want to get Internet weather records for your location for the period a month or so prior to the damage, to combat claims that high winds or temperature changes caused the damage. These largely spurious claims will be likely to disappear if you have the records, but could be problematic in pursuing your claim if you don't have them.

Safeguarding Your Documentation

Once you've gone to the trouble to generate and organize all this documentation, you certainly don't want to lose it to a computer hard disk crash, a fire or some other disaster. Chances are, you'll be sending some of the material, if not all, to your attorney, but you shouldn't depend on law firm employees being able to find quickly everything you have sent them. For most people, the simplest way of backing up critical digital data files is to write them out to a rewritable or read-only DVD. These days, most people have DVD burners in their computers. Once a week or so, you should rewrite the DVD to include all new data information.

One DVD will probably hold all your written data and images, but will certainly not hold all your video, if you have any significant amount. Video files are huge in their uncompressed state. For backing these up, an extra hard disk, either internal or external is the best medium. A 1 Tb external USB hard disk for this purpose can be bought for around $50 these days. Once you have such an extra disk set up, you can use any backup software you might have (including that included with Windows) to regularly back up your video and other documentation.  If you have an account with an online backup service, that's a good option, too. If you're generating a lot of data, daily backups are needed; if you're generating more moderate amounts, weekly backups should be fine.

If you file suit, you will have to produce much or all of your documentation in response to discovery requests (see CVDG Pro). Video is best produced on DVD's, which use a "lossy" compressed MPEG format. What this means is that the DVD's, while adequate for viewing and production, will not have all the information (e.g. EXIF data) in the original uncompressed video files (e.g. .AVI format). So, a production of video on DVD's does not allow you to discard the original video files.

Data, for example, photos, digital documents, scientific papers, etc., can also be put on read-only ("R" disks, not rewritable "RW" disks) CD-ROM's or DVD's. You should keep exact duplicates of everything you produce, both in hard copy and as digital data. These duplicates should be stored away from your home. You can send copies of these data disks to family members for off-site storage or get a safe deposit box. If you need to store a few critical digital documents off-site, sending them to a GMail, Hotmail, or similar online e-mail service is a good option. Just e-mail the documents to yourself as attachments and the mail services will maintain the backups for you at no cost, at least to the limits of your allowed account storage.

I cannot overemphasize the importance of keeping up-to-date backup copies of all your information. If you get a production request for information which you have had, but have lost or cannot find, you could be sanctioned by the Court for destruction of the information (in legal terms, "spoliation of evidence"). Of course, you cannot use anything you have lost as evidence. Worse yet, any part of that evidence you may still have could be excluded from the case, because it is incomplete and, therefore, "prejudicial" to the opposing side.

Is That All?

I wish I could say that the answer is "no"; unfortunately, that's probably not the case. Each situation is individual, because the damages are unique to each structure, the people different and the legal jurisdictions as variable as the people. In general, the more damage you have, the more difficult it will be to reach a resolution and the more documentation you will need to support your claim. Of course, the larger your claim, the more motivation you will have to do that documentation. The documentation items mentioned here should give you a good start on what you will need.

Getting all this documentation together may be difficult, if you work outside the home during the day, but don't let that discourage you. Any amount of documentation of construction and damage is better than none. Even though preparing all this documentation is a lot of work, it will be well worth your time, if your damages amount to tens of thousands of dollars (or more), as is typical.


1. Because vibration monitoring is so often initiated only after a complaint of damage, the largest and most damaging vibrations in a job are often unrecorded. In some fortunate circumstances, you may still be able to learn something of particularly large and damaging vibrations. Both the USGS and many universities maintain seismographic observatories throughout the U.S. to record earthquakes. If you are close to such a facility (say, within a mile) and particularly large vibrations are involved, they may show up on the records of that nearby seismograph. Most such facilities are publicly-funded, so those data are usually accessible, so long as you know the date and approximate time of the vibrations. Only a few people are located close enough to benefit from these data, which will likely include only the largest vibrations, but they can be very helpful in a case where there is no vibration monitoring. An Internet search will tell you the locations of these seismographic monitoring sites.

This page is a chapter from the Construction Vibration Damage Guide for Homeowners (CVDG), a 100+ page free document with over 200 color photos, diagrams and other illustrations. It is available at http://vibrationdamage.com as a series of web pages or in full, web navigation and ad-free, as a downloadable PDF document, with additional content not available on the web. The free version of the CVDG is licensed to homeowners and others for personal, at-home use only. A Professional Edition (CVDG Pro), licensed for business use and with over three times as much content, can be ordered from our Order the CVDG Pro page, usually with same-day delivery. You can comment about this page or ask questions by using our Visitor Comment form. If you would like to discuss vibration damage issues, join us on Facebook.

 

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