It’s always a pleasant surprise to hear from folks who frequent this site because otherwise I would never know who is reading my musings, where in the wide world they are doing it or whether they are resonating with my target audience.
The other day I got an email from a reader in Seoul, Korea – I never say South Korea because, well, because it is the Republic of Korea, not the Republic of South Korea – who quoted this text from this recent post:
“But let’s take it a step further. Suppose that this inspector failed to discover some other defect that ended up costing his client a lot of money to correct.”
“Would the inspector be liable for that loss?”
“No. Because the client did not read the report. Even if the inspector had not failed to discover the defect and reported it in detail, it would not have deterred the client from purchasing the property, essentially as is, because he did not read the report. You cannot claim to have been deprived of knowledge that you made no effort to acquire.”
And then wrote: “True, but how could you prove he didn’t read it?”
I had wondered when someone would raise that question and it is a good one because received wisdom would argue against the claimant actually admitting that he did not read the inspection report and, thus, could not have relied on it in making his buying decision.
The truth is that trial lawyers have to prove all sorts of facts indirectly by logical inference. In the theoretical case that prompted my correspondent’s query, there may actually be several ways of establishing indirectly that the client could not have relied on the inspector’s findings.
One possible way would be by computer time-stamping. Most inspection reports are delivered electronically and downloads are usually date/time-stamped. If the date/time-stamp showed that the report was downloaded subsequent to the drop-dead date, it would not matter what the report said or did not say, would it?
Another way would be to demonstrate that the client failed to take action on issues that the inspector did report. Since it would be a rare inspection report, indeed, that did not have some issue that would be of concern to the average person, if the client failed to take that issue up with the seller that would be a pretty reliable indication that the client did not rely on the report.
This is what is meant by the term “circumstantial evidence”.Already a ClaimsAcademy Member? Log In Register for Joe’s FREE ClaimsAcademy Video Tips Protect Yourself with ClaimIntercept Joe’s Law and Disorder Seminar is Available Online! Receive a Perfected Pre-Inspection Agreement