If you ever find yourself being named as a defendant in a lawsuit alleging that you were professionally negligent in conducting your inspection of the plaintiff’s prospective home, I have really good news for you. You are going to win. The overwhelming majority of lawsuits alleging professional negligence that are actually tried to verdict result in the exoneration of the professional defendant.
Why do you suppose that is? It is because professionals are, by and large, pretty competent at what they do. They know what they are doing, how to do it, follow an established protocol and do it every day.
Well, if that’s the case – and it is – you have to ask yourself this question: Why are there so many unfruitful professional negligence lawsuits and what can be done to stop them?
Most lawsuits alleging professional negligence stem from what attorneys term a “bad result” or a “bad outcome.” A patient acquires an infection during surgery. Never mind that the surgeon took every conceivable precaution to prevent that from happening, In the patient’s mind, he is responsible.
A buyer engages a professional home inspector to evaluate general conditions of a property on which he has made a purchase offer. He moves in three months after the inspection. Six months after he moves in, a clogged sewer pipe backs up into the basement of the home.
Although the home inspector would have no responsibility for that unfortunate development for reasons that I sincerely hope are surpassingly obvious, it is a mortal certainty that that “bad result” is, at a minimum, going to result in a call to the home inspector from either the client or the client’s real estate agent who will be wondering exactly what the inspector “is going to do about it.”
What the inspector does after receiving that call will determine whether this “bad result” will blossom into a professional liability claim. Many inspectors will be tempted to refund the inspection fee. When I ask inspectors at the home inspector training Law and Disorder Seminar how many of them have ever returned an inspection fee, almost every hand is raised. This is always a bad idea and a terrible business habit to form.
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What you want to be at this time is an advocate for your client, not his patsy. Keep in mind that you want him to be referring his colleagues to you when they buy or sell a house and calling you when he sells his house and buys his next one. He’s not going to do either of those things, if he doesn’t respect you as a professional which he won’t if you give him his money back.
So what you should do is go over to inspect the problem and explain why you had nothing to do with it. If he’s half-way sensible, he’ll understand.
Then you should take active measures to make sure that the local Roto-Rooter franchisee – or whatever other contractor may be engaged – does not have an opportunity to throw you under the bus by telling him that the home inspector should have found this issue.
You should be preëmptively telling your client that home ownership is a continuing battle with nature; that even after this problem is rectified, tree roots have an annoying habit of growing back and the problem will very likely recur in a couple of years; that chances are it happened several times before to the prior owners who were so inured to it, that they never even thought it was something that should be disclosed.
In other words, explain to him what he already knows but needs someone to remind him of: stuff happens. And it’s not always someone else’s fault.
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