By Keith Swift, PhD
InterNACHI Editor in Chief
President, Porter Valley Software
I just spent the better part of a morning with two attorneys and a court stenographer.
All in all, as W.C, Fields once remarked, I would rather have been in Philadelphia.
There I was sitting in a high-rise office building in downtown Los Angeles, with
a parking meter ticking away in a subterranean garage where my vehicle was ensconced
at the rate of three dollars and seventy-five cents for every fifteen minutes.
I had to present a driver’s license and be confirmed to have a scheduled appointment
before I was given an electronic card that gave me clearance to enter the inner
sanctum and access an elevator that whisked me silently to the twenty-first floor
and the palatial suite of a law office. Perhaps the law partners had learned of
my articles on the subject of avoiding litigation, I mused, and heard my repeated
and bitter denunciation of the California legal system, and were now ready to
dissect me with their legal scalpels. Regardless, there was nothing that I could
do about that now. I was, as they say, like Daniel in the lion’s den. However,
I had not been named in the lawsuit, and was merely being deposed. Three years
earlier, I had completed an inspection on a residence that was alleged to have
suffered serious rodent infestation that the sellers had purportedly never disclosed.
My report indicated that an unsealed void near the roof eaves in a breezeway could
permit rodent intrusion, and had also identified a baited trap in a bar-sink cabinet
in a game room.
Bear in mind that the Moreno decision in California renders me responsible for
the properties that I inspect for a period of four years, and that anyone has
the legal right to sue me during that period, and not just my clients, who happen
to be the plaintiffs in this case. Realizing this, I wanted to slip beneath the
table and hide, but instead I resolved to ponder each question very carefully:
“Did you consider the house to be rodent-infested?” the defendant’s counsel asked
me. “No, I didn’t,” I said to myself. “Well, hold on, maybe I did. How the hell
can I answer that honestly? I saw a baited trap, didn’t I? And, doesn’t that attest
to rodent infestation? But infestation is a big word, I reasoned.” I felt suddenly
perplexed, as I pondered how best to answer what was after all a rather ordinary
question, and asked the attorney to repeat it while I considered the variety of
my answers. “Did you consider the house to be rodent-infested?” he repeated, deliberately
enunciating each syllable, and reminding me of a tyrannical Latin professor in
the boarding school of my youth. I sat up straighter in my chair, hoping to appear
more imposing: “Look, bear in mind that I did this inspection almost three years
ago,” I responded, “and I don’t remember anything about it. I don’t even remember
the house, even though you’ve shown me pictures of it, and all I can say is that
my report speaks for itself. As you are aware, my report confirms that I identified
a point in a breezeway where rodents could enter, and indicates that there was
a baited trap inside the house, and I’m not prepared to draw inferences from that.”
At this point, the plaintiff’s counsel interrupted, stood up, leaned across the
table, and pushed a report in front of me: “And if I showed you documentary evidence
that rodent intrusion had been deliberately concealed a full five-days before
your inspection ….” “Objection!” the defendant’s counsel protested, “on the grounds
that this has not been established or placed into evidence,” or words to that
affect. “You may answer that,” the plaintiff’s counsel smiled, ignoring the vigorous
protest. I hesitated. Well, here I am between the proverbial rock and the hard
place, I thought, damned if I do and damned if I don’t. Oh well, I might as well
say what I think. “If what this report indicates is indeed true, that traps and
rodent carcasses had been removed in the days prior to my inspection, then the
answer to your question is yes, and I would have considered the house to be rodent-infested.”
The defendant’s counsel fixed me with an icy stare. Oh Lord, I mused, why didn’t
I just mutter about not being qualified to make such judgments, or tell them that
I had to use the restroom, where I could gather my thoughts or give myself a damn
good talking-to in the mirror? Too late now, I thought, I’ve probably opened a
Pandora’s Box or unleashed the clappers of hell.
Anyway, that’s the way it went for another hour or so, which left me realizing
how vulnerable we are as inspectors, as though I didn’t know that already. Mark
my words, these attorneys are not mere mortals; they inhabit the lofty realms
of high rise buildings and are closer to heaven than we are, and they are certainly
higher up on the food chain and don’t work for peanuts. The conference room alone
was almost as large as my house, and the deposition must have cost several thousand
dollars. Thank God I was not named in the lawsuit, I mused. And thank God I had
made mention of rodents in my report, or I too might have been a defendant once
again. And, if my experience is worth anything, this lawsuit is likely to involve
charges of fraud, if it doesn’t already, and will be very expensive. However,
it did persuade me to hurry home and add yet one more narrative to my report-writer,
which I trust will afford me and others even greater protection in the future.
This is one that I added:
Vermin and other pests are part of the natural habitat, but they often invade
homes. Rats and mice have collapsible rib cages and can squeeze through even the
tiniest crevices. And it is not uncommon for them to establish colonies within
crawlspaces, attics, closets, and even the space inside walls, where they can
breed and become a health-hazard. Therefore, it would be prudent to have an exterminator
evaluate the residence to ensure that it is rodent-proof, and to periodically
monitor those areas that are not readily accessible.
Take this narrative, if you can use it. But, above all, do everything you can
to avoid litigation.
