When Inspecting a Property, Remember to Bring Your Rebar Detector…And Your Crystal Ball, Too

Tuesday, April 1, 2014

A recent case out of San Diego County underscores the importance of clearly outlining the scope of your inspection in your inspection agreement.

In that case the plaintiff, a 20-year old male college student was visiting friends, who were also college students, at a home they rented near San Diego State University. The plaintiff decided to participate in the sport of Parkour, utilizing a free-standing six foot concrete block wall located in the home’s backyard. (“Parkour” is defined as the sport of traversing environmental obstacles by running, climbing or leaping rapidly and efficiently). 

When the plaintiff attempted to pull himself onto and over the wall, it collapsed on him and he sustained serious injuries to his legs including fractures in both legs, a torn meniscus and a severed femoral artery.  He underwent numerous surgeries and other procedures to address his injuries. He was hospitalized for two months and was wheelchair dependent for nearly one year.  At trial (two and a half years after the incident), he claimed $473,495 for medical costs already incurred, $1.4 million for future medical costs, and past and future pain and suffering.

Opposing Sides

The defendant parties in this case were the owners of the rental property. At the trial, the plaintiff’s attorney showed that the subject wall had reinforcing bar only up to 20 inches above the ground. He argued that a reasonable inspection of the property would have required a contractor or structural engineer to look closely at the wall and that, by using a rebar detector, an inspection would have discovered the wall was not properly reinforced. He argued the defendants failed to warn of the wall’s dangerous condition (structural weakness due to inadequate rebar).

Defendants’ counsel contended that the wall had stood on the property for nearly 50 years and was built to code at that time. Defendants also argued they were not under a duty to improve or otherwise strengthen the wall because under normal use it did not pose a threat or constitute a dangerous condition. They further argued the incident was caused by the plaintiff’s own actions by jumping on the wall.

Verdict: Determining Liability

The jury returned a verdict for plaintiff in the amount of $6,273,495 ($5.8 million more than the plaintiff’s medical costs of $473,495). After finding the plaintiff to be 75% responsible for his own injuries, the jury reduced the award to $1,568,373.75.

While no property inspector was a defendant at trial, this case points out just how far legal arguments can be stretched to prove liability and what you may do as an inspector to try to minimize your exposure from such potential claims.

It is seldom possible to forecast what may happen at a property years after an inspection is performed. In this case, was it foreseeable to the property owner that one of his tenant’s guests would use a wall in the backyard as part of a sporting activity? The jury clearly found so, but they had hindsight to help them connect the dots. One thing is certain – if the property owner had the home inspected prior to the accident, the next lawsuit to follow would be one by the property owner against the inspector for failing to properly inspect the wall.

Safeguarding Your Home Inspections

While home inspectors cannot use crystal balls to predict what someone may do in the future at any property they inspect, one thing inspectors can do is attempt to limit their potential liability against claims by defining the scope of the inspection along with all areas of inspection in their agreement with the owner. Also, while performing the inspection, document those areas of the property that were inspected along with all structures, walls, improvements, etc. that were not inspected. Such documents can include photographs of the property, but be sure to clearly label the photographs at the time the work is performed so that they are useful years later when any claims are made. Such limiting language in an inspection agreement and documentation may not prevent a lawsuit from being filed against the inspector, but it could go a long way in defending against such claims and perhaps defeating the claims entirely.

Now It’s Your Turn

When outlining the scope of your home inspection, what steps do you take to safeguard against the unpredictable? Join the conversation in the comments below.

This guest post was written by Paul Smigliani, Esq. Admitted to practice in California and Arizona, Paul's areas of practice include insurance defense, real estate litigation and commercial general liability. He is a partner at Munro Smigliani & Jordan LLP, an A-V rated law firm specializing in civil litigation and insurance coverage analysis. Feel free to contact Paul by email at psmigliani@msjlaw.com.

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