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Tue, Aug. 20

Are inspectors and contractors liable for damage? Part II

In my last column, I replied to a letter from someone who was upset after his home was inspected. The inspector tested the GFCI outlet (with the "test" and "reset" button) in the bathroom and the outlet would not reset. So there was no power in either bathroom, and the inspector did not let anyone know.

The question was: if a home inspector breaks something, is he/she required to pay for it?

As with many things in my profession, there is no single correct answer. Here was part of my answer:

"There is no rule stating a home inspector has to fix things if he breaks them. I like to think that most inspectors are professional and would. I don't believe there is a Registrar of Contractors rule stating that a plumber or electrician is required to fix something he damages in your home, but a professional certainly would."

I then told one of my "war stories," when I pulled on some wall cabinets in a garage and they came off the wall. It was all I could do to hold them above a sink faucet, until enough paint cans fell out that I could safely lower the cabinets. I received quite a few emails after that column. Most, of course, agreed with me. But not all. Following are emails and my replies to a reader named Adele.

"Randy, of course the registrar of contractors requires a licensed contractor to fix what he damages. If inspectors are not required to fix what they damage, I for one will not have one in my house. It is the contractor's liability whether licensed or not and I would hope this includes inspectors to repair or replace what they damage in your home. If you receive payment for service you are automatically liable for any damage due to your service. This is the law. One other thing. If those cans of paint broke open and damaged the floor you would have been liable."

Adele, I think you missed the point of the column. I agree that if an inspector, or any professional, damages a home they should be liable. But that is not the law. There is nothing in the BTR rules that states if I back into a garage door, I need to fix it. If I did back into a garage door I would of course pay to have it fixed. But say I'm inspecting a vacant home. I press the button to open the overhead door. Halfway up it stops. The 20-year-old opener decides to die right then. By state law, I have to operate overhead door openers. So did I damage it? It would have failed the next time the button was pushed, I just happened to be that person. It would cost me more than my inspection fee to have the opener replaced. And E&O insurance would not cover it. There were no Errors or Omissions - I was doing exactly what the state requires, and what every other home inspector would do. What if I turned on the central air conditioner and it does not work? Should I have to pay for a $2,000 compressor?

So you see, there is a gray area here. Arizona requires me to test GFCI outlets and overhead door openers. If something is not or stops working, and all I did was what a homeowner would do. I did not damage the home.

I have damaged things, which I've admitted in this column over the years. I turned on an oven once and melted a bunch of Tupperware plastic bowls. I knocked a vase off a windowsill once (the seller claimed it was an heirloom that had been in the family for generations, even though there was a Walmart sticker on the bottom). And I immediately told the owners of the home and wrote them a check.

Adele responds:

"Randy, if you backed into my garage door you are liable. The courts make you liable. It may not be an ROC requirement but it is common law. I understand what you are saying about turning things on that do not work. Of course you are not liable. But if you pull on a cabinet full of paint and it falls and breaks the sink and floor, you are liable. I know you think inspectors are not legally liable for physical damage but legally they are liable."

Adele, I have to respectfully disagree with just about everything you say. Errors and Omissions insurance pays for, well, errors and omissions. It will only cover errors or omissions in my job. The ROC can only enforce ROC rules against contractors. If a contractor does not perform per his contract, call the ROC. But if you call the ROC and say a plumber backed into your fence, I don't think they will be sending out an investigator.

And when you say it's "the law" and "the courts make you liable," what you are saying is you can sue a contractor or inspector. Of course you can. This is America. You can sue anyone for anything. You can sue the restaurant if the coffee is too hot. Or too cold. But I assure you there is no Arizona statute that says if someone spills paint on your garage floor he has to pay to clean it. The police will not come out and say, "You spilled paint on her floor - pay up!" If the contractor refuses to pay for it, you only choice is to sue. And no one can accurately predict who will win a lawsuit (except, of course, the lawyers - they always win).

Randy West owns Professional Building Consultants in Prescott. He is state-certified and has performed more than 7,000 home inspections in the Prescott area. West serves on the Home Inspector Rules and Standards Committee for the Arizona Board of Technical Registration. Contact him at randywest2@gmail.com or visit http://inspectprescott.com.

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