Avoiding Litigation: The Use of Specialized Instruments

The use of specialized instruments, like the quotation of codes, has always caused disputes among inspectors. Some argue that their use can jeopardize our status as generalists; while others point out that nothing in the standards prohibits their use. But one thing you can be sure of, inspectors are fascinated by them. I’ve read several articles arguing against their use, including one that defines a spirit level as “specialized engineering tool,” but I still favor the use of such instruments, because they can help us avoid litigation. First of all, I don’t believe that their use jeopardizes our standing as generalists. As difficult as it is for me to say anything positive about litigation in the inspection industry, I don’t believe that an inspector will ever be blamed for going beyond the standards. But even if this were not true the trick is to avoid litigation, because once you’ve got that far you’ve lost anyway. Let’s face it, your deductible is gone, your reputation’s tarnished, and you’re in jeopardy of losing your insurance. I know, because my policy was cancelled after two frivolous lawsuits, even though my attorney wrote a letter to the carrier confirming that the suits were settled for economic reasons, and not because of any alleged negligence on my part. “Negligence” and “fraud,” are the most powerful words in an attorneys’ arsenal, because they can pierce the shields of our contracts and the standards of our service. Ask any inspector who’s been sued whether it was for breach of contract or for negligence or, worse, fraud!

For too many years, my only defense was common sense, a contract written in plain English, paper check sheets, a screwdriver, and an outlet tester, which I regarded with awe as something mysterious and wonderful that I would never really understand, like lightning. I lived in a make-believe world of sweetness and light, in which justice and truth prevailed, and it took a decent attorney to drag me back into the real world. This is what he told me, and what he would tell you. You’ve got deep pockets, in the form of errors and omissions insurance, and you’re going to be sued. So, get used to it. It’s the cost of doing business. Isn’t that hard to take? Anyway, that’s when I began to add more specialized instruments to my own arsenal of weapons. Yes, they are weapons, because it’s a war zone out there, and attorneys are like camouflaged snipers with sophisticated telescopic rifles and laser-guided bullets. When you’re hit, you won’t even hear the percussion or see the muzzle flash. The trick is to stay out of their line of sight, and computerized narrative report-writers, together with specialized instruments can help you do just that. I’ll illustrate this with a couple of stories from the trenches.

The ear is a truly sophisticated instrument that utilizes a microscopic fluid-process that transmits messages to the brain through hair-like structures called cilia, which tell us when we are not perfectly upright. That’s how we can sense when a floor is out of level, but it’s not foolproof. I was inspecting a relatively new three million dollar house not too long ago, in which a floor contractor was telling the clients that he didn’t need to use his level to confirm that the floor sloped. The price of the house is not important, and I relate it only to make the point that people who can afford to pay that much can certainly afford to sue people. Anyway, the house had a huge open floor plan that permitted an expansive view of the living space, which was interrupted only by one or two pony walls. I looked around, and everything seemed normal, and I was not convinced by what the contractor had said. The windows didn’t appear to be out of square and, given the quality of production framing, I never expect to find perfectly square openings anyway. Nonetheless, I shot elevations with my laser level, which confirmed that the floor was indeed five full inches out of level. The house fell out of escrow, and apparently several other times after my inspection, and ended up in a lawsuit. My laser level certainly helped me to dodge the bullet on that one, and I later learned what only a geologist would have known which was that the soil in this desirable area of multi-million dollar homes is unstable. The truth is, I don’t whip out my laser level and wave it around for everyone to see but, as with my American Express card, I never leave home without it.

Let me tell you about another case. The house that I was inspecting was old, but had been totally renovated. It was about fifteen hundred square feet and vacant, and I was left alone with absolutely no pressure on me whatsoever. The realtor had assured me that the house was a “cream puff,” and predicted that I wouldn’t find anything wrong. It was Friday, and I was eager to get home to my family. I’d just about finished, and found enough deficiencies to convince myself that I was providing a worthwhile service, when I decided to shoot some elevations, almost as an afterthought. The living room, dining room, kitchen, and a bedroom in the front were well within tolerable limits for a slab on-grade foundation. Then I shot elevations down the carpeted hallway and on through the master bedroom in the rear, which were fine until a point just inside the bedroom and adjacent to a walk-in closet, where the slab dropped dramatically, or three inches. Reasoning that if the slab had settled that much, movement should be apparent elsewhere. I looked more closely, and noticed that the ceiling in the closet had been repaired. I went back into the attic and confirmed a one-inch separation in the button-board. So I pulled back the carpet in the closet, and found a slab fracture that was almost two inches wide, and which bisected the house, but which was not visible on the outside. Did I dodge another bullet with my expertise? No, I credit the laser level with that victory.

I could tell you many more stories from the trenches that all illustrate the same point. The truth is, even an ordinary flashlight is a specialized instrument. Let’s face it, how many inspectors could explain the nature of lumens or the propagation of light? I know that it will always remain a mystery to me, along with the inner workings of my outlet tester, my laser level, my infrared thermometer, my deep-probe moisture meter, my carbon monoxide detector, my digital camera, and my computerized narrative report-writer. The truth is that everything finally dissolves into mystery, doesn’t it? And if we can keep unscrupulous clients and their attorneys off our backs long enough, we could all sit around and ponder the real mysteries of life, or maybe just enjoy a cold beer.