Opinions Vary

[Joe Farsetta]

Opinions Vary

Often, Inspectors pontificate in areas where even experts agree to disagree. A case in point involves the denial of a new trial brought by clients of a builder, where the builder was alleged to have constructed a defective house. The lower court held that the builder was not negligent, and the Plaintiff was entitled to zero dollars.

For the purposes of discussion, three items were alleged to constitute defective construction: a footing poured out of spec (differed from what the Architect’s plans called for), improper height of foundation walls, and floor trusses that did not reach nor bear on the foundation walls (too short).

Expert witnesses were brought in by the Plaintiffs, and included an engineer and a home inspector. The builder brought in his own experts.

The first item of discussion was the short trusses. The general opinion of the inspector and engineer was that the truss installation was improper, and that the wall was improperly constructed to support the load of the trusses. In the end, the truss manufacturer’s own engineers visited the site and concluded that the wooden wall, constructed to support the trusses, was adequate. Strike One.

The second item of discussion had to do with the height of the foundation wall. Apparently, the Client wanted 8’ ceilings in the basement, and there was a discrepancy between the height of the poured walls, and overall height at the bottom of the floor trusses. The builder simply built-up the sill plate to make up the difference in height (which apparently was off by a few inches). The Plaintiffs contended that this was defective construction. The builder countered that the sill was bolted to the foundation, and subsequent sill boards were adequately nailed in place. The jury agreed. Strike Two

The third discussion centered on the size of the poured footings. Although the Architect’s plans called for a larger size footing, the builder poured something much smaller. The Plaintiffs contended that the builder failed to follow the plan and that the footings in question would fail. Clearly the footings were smaller than what was specified by plan, and the builder ackinowledged this. So what was his defense? Two things: 1) the builder produced a document signed by the Plaintiffs whereby he informed them of the precise size footing he intended to pour and that the Architect’s plans were for guidance only and 2) the Plaintiff’s own footing expert testified that the footings could fail; not will fail. Strike Three

The point in all of this is that we, as inspectors, see anomalies all the time. We comment on them, but really need to be careful to remember that we do so from the perspective of quality, primarily. In the examples given, common sense would dictate that things went terribly wrong with this build. However, in the end, even the so-called experts failed to convince a jury or appellate judges that the defects were severe enough to allow the Plaintiff’s to walk away from the dwelling and recover damages from the builder.

Even my wife and I got into a quasi-heated discussion over this. As a draftsperson, she tends to be more of a purist, and believes there was no way the builder should have gotten away with this. She asked me if I would ever accept this type of workmanship if it were my own home. My answer was, of course, “no”.

But, to the point… even when things seem as if they are black and white, and a court case looks like a slam-dunk, one may never lose sight of the fact that litigants lose in court all the time. Sometimes, the judicial system throws you a curve ball.

So, imagine you are the home inspector who opens mouth and inserts foot. Our opinions vary and often we interject opinion, which can sometimes be used against us. Be careful out there, because for every expert inspector there is an engineer or architect to dispute our findings, or the findings of another licensed professional.

Where the common sense of the judiciary should be automatic, at the end of the day many folks find themselves on the outside looking in. It’s difficult to make sense of it all, when things seem to be so black and white. In the end, nothing is as it seems.

This example was a court case called Landwehr vs. Mitchell, in the State of Kentucky


www.inspectionarbitrationservice.com

Fixed-price Arbitration and Mediation Sevices, just for inspectors.

The best kept secret in the Industry

Still just $90 to subscribe for InterNACHI members.