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  #61  
Old 12/15/10, 12:28 AM
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https://www.nachi.org/proving-negligence.htm
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  #62  
Old 12/15/10, 1:19 AM
Robert Smith Robert Smith is offline
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Michigan law does not speak in terms of negligence per se. Rather, "violation of a
penal statute creates a prima facie case of negligence from which the jury may draw
an inference of negligence, but it does not establish negligence per se." Furthermore,
while "a party's violation of a statute creates a rebuttable presumption of negligence,
this presumption can be rebutted by any legally sufficient excuse."
However, in some instances the penal statute itself may explicitly create civil
liability. If it does not, "a court in its discretion may either adopt the legislative
standard or retain the common-law reasonable person standard of care".


750.33 False advertising; penalty; excepted participants in publication.
Sec. 33.
(1) A person who, with intent to sell, purchase, dispose of, or acquire merchandise, securities, service, or anything offered or sought by the person, directly or indirectly, to or from the public for sale, purchase, or distribution, or with intent to increase the consumption of merchandise, securities, service, or other thing offered or sought, or to induce the public in any manner to enter into an obligation relating to or interest in the merchandise, securities, service, or other thing offered or sought, makes, publishes, disseminates, circulates, or places before the public, or causes directly or indirectly to be made, published, disseminated, circulated, or placed before or communicated to the public, in a newspaper or by radio broadcast, television, telephone, or telegraph or other mode of communication or publication or in the form of a book, notice, handbill, poster, bill, circular, pamphlet, letter, or communication, including communication by telephone or telegraph to 2 or more persons, or in any other way, in advertisement of any sort regarding merchandise, securities, service, or anything so offered to or sought from the public, or regarding the motive or purpose of a sale, purchase, distribution, or acquisition, which advertisement contains an assertion, representation, or statement or illustration, including statements of present or former sale price or value, which is false, deceptive, or misleading, or calculated to subject another person to disadvantage or injury through the publication of false or deceptive statements or as part of a plan or scheme with the intent, design, or purpose not to sell the merchandise, commodities, or service so advertised at the price stated therein, or otherwise communicated, or with intent not to sell the merchandise, commodities, or service so advertised is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00.
(2) Subsection (1) does not apply to an owner, publisher, printer, agent, or employee of a newspaper or other publication, periodical, or circular, or of a radio station or television station, who in good faith and without knowledge of the falsity or deceptive character thereof, publishes, causes to be published, or takes part in the publication of an advertisement described in subsection (1).
(3) Subsection (1) does not apply to any person, firm, or corporation providing telephone service to subscribers as a public utility.

History: 1931, Act 328, Eff. Sept. 18, 1931 ;-- Am. 1941, Act 340, Eff. Jan. 10, 1942 ;-- CL 1948, 750.33 ;-- Am. 1955, Act 176, Eff. Oct. 14, 1955 ;-- Am. 1957, Act 180, Eff. Sept. 27, 1957 ;-- Am. 2002, Act 672, Eff. Mar. 31, 2003
Former Law: See sections 1 and 2 of Act 245 of 1899, being CL 1915, §§ 15340 and 15341, and CL 1929, §§ 16988 and 16989; and section 1 of Act 319 of 1925, being CL 1929, § 16990.




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  #63  
Old 12/15/10, 7:48 AM
Brian A. MacNeish Brian A. MacNeish is offline
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Quote:
Originally Posted by jbushart View Post
Billy's point was that the seller...not the buyer...would have a claim of negligence since the "missed" item was not in the report and he presumably did not have the opportunity to repair it before the buyer discovered it and walked away from the deal. Problem with that is...it's the seller's house and if he didn't know about it after living in the house for XXX years and failed to disclose it to the inspector or the buyer....how can the inspector be held accountable for not discovering it in the three hours he spent on the property? I think the seller would have a difficult time proving he was damaged by something that even he, after spending much more than 3 hours in the house, alleges not to know about.
What about something like "Knob & Tube" wiring which in our neck of the woods the AHJ will approve but insurance companies require it to be removed. The homeowner may never know that it was still in place, especially if they owned the house for a short period and and they had not done any renovations.

About 5 years ago, I had an inspection for a house that had been bought by an engineer as a residence for his kids while they were in university here. My clients, through a private sale, were also doing the same in purchasing it from the engineer. I found the K&T and told him it could cost up to $10,000 to remove the remaining K&T which after 3-4 days of ********/calling by him, he finally reduced the price by that amount!
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  #64  
Old 12/15/10, 12:17 PM
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Quote:
which is false, deceptive, or misleading
An inspector saying something about a home that he believes to be true (but which in fact is not true) is not false advertising. It is only false advertising if you are knowingly misleading someone. If you are simply incorrect about a house having no safety hazards, that isn't false advertising. And besides, MIC doesn't do that anyway. MIC says "no known safety hazards."
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  #65  
Old 12/15/10, 12:26 PM
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And even furthermore, you aren't certifying that there are no safety hazards. The seller is confirming that you didn't find any and he/she doesn't know of any. Huge difference, and far less liability.
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  #66  
Old 12/15/10, 3:16 PM
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Billy Boerner Billy Boerner is offline
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Quote:
Originally Posted by gromicko View Post
Uh... how is your liability "increased if you miss something significant and the buyer's inspector found it" for you?

Had you been working for the buyer, the other inspector couldn't have found it (because he wouldn't have existed), you'd be the only inspector in the deal. If he didn't find it (because you are the only inspector) it would have been worse... which would be the case if you missed it for the buyer (instead of the seller).

The buyer's inspector saved your butt and discovered the problem BEFORE the buyer bought the home and found the problem (you missed) and before it was too late to demand the seller repair it.

Liability is reduced in your scenario. Not just reduced... it goes to zero: A buyer can't sue ANY inspector for a defect that was discovered (regardless of which inspector discovered it).
We simply don't see eye to eye Nick. It's that simple. I stated I did a MIC inspection. Never stated I worked for the buyer. It's simple to me. If I did a MIC inspection for the seller, missed something, the buyers inspector found it and the deal was killed the seller "might" come after me and IMO this is increased liability over a typical inspection I might do for the buyer before close of escrow.



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  #67  
Old 12/15/10, 6:54 PM
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The seller can't come after you for the defect (like the buyer could, if you were working for the buyer), because you didn't cause the defect by missing it. No causation.
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  #68  
Old 12/15/10, 7:40 PM
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Quote:
Originally Posted by gromicko View Post
The seller can't come after you for the defect (like the buyer could, if you were working for the buyer), because you didn't cause the defect by missing it. No causation.
I understand your theory that the buyers inspector caught the defect. To me it could go both ways. All is happy that the buyers inspector caught it and the deal still closes or the seller is mad as hell because the buyers inspector caught something their inspector didn't which caused the deal to go south. I understand the seller still has the opportunity to fix it but in my eyes the seller has a understanding of sorts that their property was "certified" by their inspector and it could lead to them filing a claim against you wondering why you as the MIC inspector didn't find that defect in first time around. It's possible Nick, you know it. Anything is possible the MIC program can do some good I just think you have the wrong name for it. Anyway you look at it certified still means certified and as a judge I would giggle at your notion that you think your program has the right to pass on the buck to the seller to actually certify the home. Your program screams that a home inspector will certify someone's home for sale to the general public. Trust me on that one. You know I always shoot you straight. Change the name.



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  #69  
Old 12/15/10, 8:50 PM
Brian A. MacNeish Brian A. MacNeish is offline
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Quote:
Originally Posted by gromicko View Post
The seller can't come after you for the defect (like the buyer could, if you were working for the buyer), because you didn't cause the defect by missing it. No causation.

because you didn't cause the defect but by missing it, it is considered negligence especially if the house sale fell!!!
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  #70  
Old 12/15/10, 9:11 PM
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Quote:
but by missing it, it is considered negligence especially if the house sale fell!!!
Even if it was negligence, missing a defect doesn't cause a house sale to fall through (catching it does) and doesn't cause the defect itself (of course).

One can't argue (in a believable hypothetical scenario) that a buyer would walk from a deal only if a particular inspector found the defect. Or that the buyer would stay in the deal only if the seller found the defect and repaired it before they buyer's inspector found it. Makes no sense.
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  #71  
Old 12/15/10, 10:21 PM
Brian A. MacNeish Brian A. MacNeish is offline
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Quote:
Originally Posted by gromicko View Post
Even if it was negligence, missing a defect doesn't cause a house sale to fall through (catching it does) and doesn't cause the defect itself (of course).

One can't argue (in a believable hypothetical scenario) that a buyer would walk from a deal only if a particular inspector found the defect. Or that the buyer would stay in the deal only if the seller found the defect and repaired it before they buyer's inspector found it. Makes no sense.
Should've been a bit more clear:

"but by missing it, it is considered negligence especially if the house sale fell through due to a buyer's inspection!!! "

And the vendor will be after the HI's ---!! I think there's liability in that situation!!
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  #72  
Old 12/15/10, 11:19 PM
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No more (actually less) than had you missed it for the buyer and the buyer (who would have walked in your scenario) ended up buying the home and finding it after it was too late to demand that the seller repair it.
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  #73  
Old 12/16/10, 7:13 AM
Brian A. MacNeish Brian A. MacNeish is offline
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Quote:
Originally Posted by gromicko View Post
No more (actually less) "liability" (BM insertion) than had you missed it for the buyer and the buyer (who would have walked in your scenario) ended up buying the home and finding it after it was too late to demand that the seller repair it.
Your above statement admits there is liabiliity.......that's the basis of this discussion>
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  #74  
Old 12/16/10, 9:19 PM
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Nope. Read post# 1 slower.

I'm not saying MIC has no liability, I'm saying that MIC has less liability (in any scenario with all other things being equal) than the same inspection performed traditionally for a buyer.

I'd much rather inspect for the person moving OUT of the home, rather than IN to the home. And I'd much rather have the buyer's inspector find anything I missed before any damages can accrue.
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  #75  
Old 12/16/10, 10:20 PM
James H. Bushart James H. Bushart is offline
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Quote:
Originally Posted by gromicko View Post
Nope. Read post# 1 slower.

I'm not saying MIC has no liability, I'm saying that MIC has less liability (in any scenario with all other things being equal) than the same inspection performed traditionally for a buyer.

I'd much rather inspect for the person moving OUT of the home, rather than IN to the home. And I'd much rather have the buyer's inspector find anything I missed before any damages can accrue.
That's pretty clear.
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