The Duty to Warn - part 1

This series of articles from the International Association of Certified Home Inspectors (InterNaCHI) has much valuable information that can be adapted for Chimney Sweeps as they perform a check of a homeowner's chimney and venting system. The articles are reprinted with permission. Authors: Ben Gromicko and Kate Tarasenko, with contributions by Mark Cohen, Esq., Joe Farsetta, Nick Gromicko, and the members of InterNACHI.

The Duty to Warn - part 1

Let's say you're doing an inspection for a home-buying client and you find a defect that, in your opinion, is hazardous. Someone could get seriously hurt. Does a home inspector have a duty to warn not just the client, but also the occupants, real estate professional, and the owner of the property? 

Warn homeowner of dangerous condition.Many inspectors consider it their ethical and even moral duty to disclose to all relevant parties any imminent hazards they discover in the course of an inspection. Some inspectors are required by their state’s licensing authority to report emergent hazards on pain of license revocation, especially if such hazards may result in physical injury. But inspectors don’t bear this burden alone. The obligation of disclosure also falls to the property owner. 

Whether the client is the home buyer or seller, it’s important for the inspector to know some of the obligations, limits and liability when it comes to disclosure, including when they may intersect—or not—with the homeowner’s. 

The Homeowners’ Duty to Warn

The homeowner’s obligation to warn others of any known dangers or hazards on the property covers invited guests, licensees (such as home inspectors and other professionals who are allowed onto the property to perform specific functions, with the homeowner’s permission), and, in some cases, even trespassers. This obligation may also be assumed by the non-owner occupant, depending on the situation and the state.  The precedent for such disclosure is found in civil law and is called “the duty to warn.”  The duty to warn says that a party—the homeowner—will be held financially liable for injuries caused to another, given that the homeowner had the opportunity to warn the other party of a known hazard but failed to do so. 

Such hazards may be hidden from visitors but known to the homeowner or occupant, and may or may not be the result of negligence. The duty to warn certain parties about known hazards can range from a deadly condition (such as a gas leak) or they may encompass all known hazards. The law makes distinctions between licensees, invitees and trespassers in order to determine the plaintiff’s legal standing, the owner or occupant’s level of liability, and the limits on damages awarded to the injured party.

As with all civil law, and even some criminal law, it is the individual state’s precedents and statutes that determine the obligations of and potential consequences for the homeowner. For example, many states do not enforce a duty on owners or occupants to warn trespassers of any potential dangers on the property, while others, such as California, enforce a “reasonable duty of care” toward any person who enters a property. As an example, a rural property owner who sets animal traps for pesky prairie dogs may be required to post signs warning trespassers of the danger.

It’s important for homeowners to know that they have a legal obligation to maintain a safe property for all invitees, and this includes having performed an inspection--personally or hired out--to discover any hidden hazards, whether or not a property transaction is involved. 

 

Reprinted with permission from the International Association of Certified Home Inspectors (InterNACHI)

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