The Duty to Warn - part 4
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.
Where to Draw the Line?
For all potential legal matters arising from a home’s condition and any associated hazards, homeowners should check with their homeowner’s insurance carrier to understand their obligations and liability.
Inspectors should check with their state licensing authority, real estate board, or other authority having jurisdiction. They should also make sure that their general liability insurance and errors and omissions (E&O) insurance are at levels appropriate to cover their particular state’s liability limits for injuries caused by their negligence or their failure to warn of a defect they discovered or should have discovered during the course of their inspection.
InterNACHI reminds its inspector-members that its Standards of Practice for Performing a General Home Inspection does not require or recommend that inspectors quote local building code to their clients or in their reports. Doing so exceeds the role of a home inspector, as well as opens the door to greater liability, if such code were to be relied upon and some injury or defect were to arise from quoting code or even failing to quote code. It's also important that inspectors understand that most building codes are based on safety. So, in the limited role of home inspector, where does the professional draw the line?
It's worth noting that anyone who's willing to pay the filing fee can file a lawsuit. Very often, people spend months in litigation arguing about whether there was a duty and who the duty was owed to. Even if the inspector wins because it is determined he did not owe a duty to the claimant, he still "loses" because he had to suffer through the court battle concerning that issue. But even this reality is not enough to dissuade some inspectors from notifying all parties of an imminent danger.
InterNACHI reminds its members that its Code of Ethics does not compel him or her to disclose information about any immediate hazards to non-client parties, but the inspector can disregard his confidentiality to his client if he feels he should warn others about an immediate hazard--as distinguished from other material defects. In fact, inspectors may wish to add the following language to their own Client Agreement:
If Inspector discovers a condition that, in his/her judgment, presents a risk of imminent harm, Client agrees that Inspector may disclose that condition to the Seller or such other third parties as Inspector deems appropriate.
As with so many factors involved in being a professional home inspector, acting in this type of situation should be weighed against the inspector's risk tolerance and best judgment.
Reprinted with permission from the International Association of Certified Home Inspectors (InterNACHI)