The Comparative Negligence Defense for Home Inspectors

by Mark Cohen, Esq., InterNACHI Counsel, and Nick Gromicko, Founder, InterNACHI
 

Some home inspectors may never encounter an unhappy customer.  We at InterNACHI hope you never do.  Eventually, though, many inspectors will.  In those cases, in addition to accusing you of breach of contract and misrepresentation, your former client may assert that you were negligent. 

You may be able to reduce the value of the client’s claim, or defeat it entirely, by asserting the defense of comparative negligence.  Although the law varies from state to state, the comparative negligence defense reduces the amount that a client-turned-plaintiff can recover on a negligence claim to the degree that the client’s own negligence contributed to his or her damages.   For instance, if a jury finds that the client’s negligence was 70%, the jury will award him or her only 30% of the damages claimed.  In some states, the plaintiff may not recover at all if his or her negligence was equal to or exceeded that of the inspector.  In a few states, the client may not recover any damages if he or she was even slightly negligent.

One way an inspector can minimize potential liability and lay the foundation for a successful comparative negligence defense is to give the client as much information as possible prior to the home purchase.  Provide the client with a thorough report -- including digital photos -- that clearly identifies any defects or issues that should be investigated further before he or she purchases the property.  When the client later claims that s/he would not have bought the property if the inspector had noted a particular defect or concern in his report, the inspector’s lawyer wants nothing more than to hand the report to the testifying client and point out where the inspector did note the defect or claim.

Another must for the inspector is to require the client to read and sign a contract prior to the inspection.  A contract signed after the inspection is meaningless.  The contract should make the limited scope of the inspection clear.  For instance, paragraph 2 of InterNACHI's Client Agreement provides:
 

Unless otherwise inconsistent with this Agreement or not possible, INSPECTOR agrees to perform the inspection in accordance with the current Standards of Practice of the International Association of Certified Home Inspectors (“InterNACHI”) posted athttp://www.nachi.org/sop.htm.  Although INSPECTOR agrees to follow InterNACHI’s Standards of Practice, CLIENT understands that these standards contain limitations, exceptions and exclusions.  CLIENT understands that InterNACHI is not a party to this Agreement and has no control over INSPECTOR or representations made by INSPECTOR and does not supervise INSPECTOR.  Unless otherwise indicated below, CLIENT understands that INSPECTOR will NOT be testing for the presence of radon – a colorless, odorless, radioactive gas that may be harmful to humans.  Unless otherwise indicated below, CLIENT understands that INSPECTOR will NOT be testing for mold.  Unless otherwise indicated in a separate writing, CLIENT understands that INSPECTOR will not test for compliance with applicable building codes or for the presence of potential dangers arising from asbestos, lead paint, formaldehyde, molds, soil contamination, or other environmental hazards or violations.

 
This paragraph alone can be invaluable if the customer who signed it asserts a claim against the inspector. 
 
Similarly, paragraph 5 of the InterNACHI model contract provides:
 

INSPECTOR does not perform engineering, architectural, plumbing, or any other job function requiring an occupational license in the jurisdiction where the inspection is taking place, unless the inspector holds a valid occupational license, in which case he/she may inform the CLIENT that he/she is so licensed, and is therefore qualified to go beyond this basic home inspection and, for additional fee, perform additional inspections beyond those within the scope of the basic home inspection. Any agreement for such additional inspections shall be in a separate writing.

 
Again, this one paragraph can prove that the inspector told the client that he would not perform certain tasks.  Because the inspector never agreed to perform those tasks, he cannot possibly have been negligent by failing to perform them.
 
One other thing an inspector can do to preserve the right to mount a comparative negligence defense is to give the client as much information as possible about how to maintain the home and look for issues after the purchase.  Many new homeowners give little thought to maintaining their new home and assume it will always be in the same good condition it was in when they first moved in.  If you tell a client what he or she should do after their purchase, and they fail to heed your advice, you have again laid the groundwork for a successful comparative negligence defense. 
With the delivery of their inspection reports, many inspectors include a copy of InterNACHI's ultimate home maintenance manual, Now That You’ve Had a Home Inspection.  This comprehensive guide takes homeowners through checklists and steps of the regular and seasonal maintenance of their greatest investment. This indispensable soft-cover book is also available in Spanish as a PDF download. 
 
This book is offered to InterNACHI members at a discounted rate for bulk purchases so that they can offer them free to their clients.  Find out more by visiting http://www.nachi.org/now.htm.
 
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