By Keith Swift, PhD
InterNACHI member/InterNACHI Report Writing Consultant
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 one remarked, I'd 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 parking lot 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 read
my articles on the subject of avoiding litigation, I mused, and learned of 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 Lego 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. Knowing 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 thought. "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?" 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 my options. "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" I responded, "that
I did this inspection almost three years ago, 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 tell the truth. "If what this report indicates
is indeed true, and that traps and rodent carcasses had been removed in the days
prior to my inspection, then the answer to your question is: yes, I would have
considered the house to be rodent-infested." The defendant's counsel fixed me
with an icy stare. Oh, shit, 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 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 thousands.
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 it if you can use it. But, above all, do everything that you can to avoid
litigation.
