News on the application of artificial intelligence (AI) in various elements of the modern economy abounds these days. Construction is no different. Whether it relates to using AI to analyze project-related data, robots to perform certain functions on a project site or some other application, the introduction of AI into the construction space brings a number of legal considerations that don’t seem to be getting much attention yet.
Prepare your contracts for the rising use of AI
What happens if a piece of equipment programmed to be operated by AI miscalculates and causes either massive property damage or injury? Who is liable? This scenario isn’t hypothetical. Look no further than a recent news article reporting that an Air Force predator drone controlled by AI went rogue, fired on and killed its human operator.
While there is some difficulty in providing specifics on what the contract clauses might look like as AI develops further, we can reasonably predict the subject matter that might need to be addressed.
The law is traditionally a conservative industry. It takes a long time for legislatures and courts to catch up, so the best way to deal with these inevitable changes is through your construction contracts. There is a template of sorts for this model in the form of clauses dealing with cloud-based project management systems and electronic document policies. In fact, many of the well-known contract form services like the American Institute of Architects have base forms for those issues.
While there is some difficulty in providing specifics on what the contract clauses might look like as AI develops further, we can reasonably predict the subject matter that might need to be addressed based on the interface between AI and the construction industry. Construction contracts will likely have to identify who is responsible when AI-operated equipment goes rogue. There are several options, including the trade whose work the equipment is helping to support, the general contractor who is responsible for site safety or the software designer who wrote the AI code. There will also likely be indemnity clauses—and perhaps insurance policies when the insurance industry catches up—dealing with the same kind of risk allocation.
Other topics that will need to be addressed in the construction contract are forum selection and jurisdictional waiver language to ensure remote operators of equipment can be held accountable in court if required; language dealing with privacy concerns and/or who owns data collected with wearable technology; and defining scope and payment issues where technology can be used to replace humans versus when human involvement is required. There will also be others as AI becomes even more prevalent.
As a general proposition, new protocols will need to be developed to address when it is appropriate to rely on AI as opposed to humans, what forms of AI are permissible on the job site, how that AI will be used and who will be responsible for the AI. Each of these topics entail the kind of risk assessment and allocation construction contracts are designed to tackle.
The bad news is that this is a new frontier and, as a result, there is no road map. The lack of a specific road map is also good news in that it allows parties to be creative in setting their own rules. There is no industry practice that even sets outer boundaries; so, while it can be hard to figure out where to start, there is nothing that constricts solutions to the problems either.
AI has advanced further in the last two to three years than in the rest of the history of computers combined. It is inevitable that AI will become a normal part of the construction industry. Companies should begin educating themselves on the technology now and develop a plan to implement it.
Josh Quinter is a commercial litigation attorney, with a focus on construction law. He is also a member of the board of directors and a department chair at his law firm, Offit Kurman. Active in a number of construction trade and business organizations, he is past president of the Mid-Atlantic Chapter of the Metal Building Contractors & Erectors Association (MBCEA), serves on the MBCEA national board and is the organization’s general counsel. Contact him at jquinter@offitkurman.com, or for more information, go to www.offitkurman.com/attorney/joshua-quinter.
