Another Case for Common Sense
By Keith Swift, PhD
I went to my mailbox a few months ago, and found a box of homemade cookies from a gracious client and
a summons from an attorney. The cookies were a complete surprise, the summons was not; that’s how crazy things are in
Los Angeles, and probably why it’s known as La-la-land. I consoled myself with a cookie, and went home to read the summons
and review my report. The summons relates that after a weekend of continuous rain the plaintiffs noticed that the carpet at
the front door of their condominium was damp. They notified the home owners’ association, who were aware of drainage
issues in the common areas and immediately agreed to correct the problem. However, after weeks of indecision while destructive
testing was undertaken and estimates procured, the plaintiffs were suddenly alleged to be suffering headaches, allergies,
and an emotional distress that no doubt inspired them to call an attorney who immediately filed suit against a whole tribe
of people.
“What has this to do with me?” I asked myself; on a condominium inspection
I disclaim an evaluation of everything beyond the unit, including grading and drainage, which is the sole responsibility of
the home owners’ association. Nonetheless, I read on and confirmed that I’d never been notified of the problem,
which is a violation of the terms of my contract, and I also confirmed that there was no evidence of moisture intrusion in
the unit when I’d evaluated it. However, I also realized that the people who were suing me were not even my clients.
My clients had cancelled escrow several months before these enterprising plaintiffs even purchased the unit. Somehow, they’d
obtained a copy of my report without paying for it, and felt that they were entitled to sue me, probably on the blatantly
unethical and amoral advice of their attorney. What does that tell you about the legal value of our contracts, our standards,
and truth itself?
If this was happening to you instead of me, wouldn’t you shake your head in
disgust? As for me, I felt similar to the way I felt on 9/11: angry and disgusted. The case was turned over to my insurance
company and settled; so much for justice. But, let’s forget about the lawsuit and talk about principles of right and
wrong; commonsense: principles that are essential to the education of every child, and which underpin civilized society and
the very foundation of our judicial system. Much of what I’m going to say I’ve said before in numerous articles
and seminars on the subject of avoiding litigation, but it’s worth repeating, because frivolous litigation continues
to threaten the livelihood of every inspector in this nation, and particularly in California. In one of my articles, I quoted
from Bill O’Reilly’s book, Who’s Looking Out for You (Broadway Books), in which he argues
that our civil justice system has become “a cesspool of corruption” (p.166), and although I’m not a disciple
of O’Reilly I do have a doctoral degree in English and can assure you that the “cesspool” metaphor is an
intentionally dramatic over-statement, and that the logic of his argument is beyond dispute: he tells the truth and supports
it with proof, which is more than I can say about many of the legal briefs that I have read over the years. I will acknowledge
that there are friends of mine who regard my articles as emotional tirades, and I can understand that because I have no tolerance
for injustice. However, I’ve never met an inspector that disagreed with me, let alone an attorney who was able to refute
my arguments with rational proof. True, many well-meaning inspectors and one attorney have advised me not to take legal issues
so seriously, and to simply accept them as a necessary evil that we have to live with, but I’ll never do that. Justice
is worth fighting for, and I’ll never countenance evil in whatever form it takes.
Like me,
most of you probably have a disclaimer in your reports that confirms that it is non-transferable. Isn’t that common
sense? After all, we wouldn’t want every Tom, Dick, and Harry to be able to access our reports without paying for them,
and then be able to use them against us in a lawsuit. However, every Tom, Dick, and Harry can do that in California, thanks
to one shortsighted attorney and an insane case law. Not only are we responsible for the properties that we inspect for four
years, but anyone that obtains our reports is legally entitled to sue us, whether they pay for our service or not. The case
law that allows this is comparable to the three-strikes-and-you’re-out law, which seems reasonable in theory until we
realize that in practice a hungry felon could spend the rest of his life in prison for stealing a loaf of bread. That’s
not right, that’s bloody barbaric and flies in the face of common sense. But that’s exactly the plight of inspectors
in California, and probably in many other states as well, who remain the potential victims of every terrorist plaintiff and
attorney who abuses the law in blatant disregard of truth and justice. I’ve said this before, and I’ll say it
again: our contracts and standards were written by the best minds in the business, but some attorneys treat them like toilet
paper. Frivolous litigation is already epidemic in our industry, and sooner or later we’re going to have to unite with
the real estate industry and do something about it.