ethics question...I guess

[John Dirks Jr]

Lets say you've been hired to do a radon test. The house is vacant and the client meets you there. While in the process of scoping the place out prior to setting up the CRM, you discover something that you think should be of concern to the client.

This particular issue could be related to radon entry. Would you be out of line for mentioning it to them even though you were not specifically there to do anything other than radon testing? Are there any ethics issues or other legal liabilities in doing this?

[Billy Stephens]

Lets say you've been hired to do a radon test. The house is vacant and the client meets you there. While in the process of scoping the place out prior to setting up the CRM, you discover something that you think should be of concern to the client.

This particular issue could be related to radon entry. Would you be out of line for mentioning it to them even though you were not specifically there to do anything other than radon testing? Are there any ethics issues or other legal liabilities in doing this?

If a lawyer could question you on the stand and you knew or should have known about a Health/Safety Hazard you need to bring it to their attention.

[John Kogel]

I think you are asking if the owner of the property could file a suit against you for pointing out a defect while you are there to do a radon test? I think he probably could.
You can argue that you just gave out some free advice, simply voicing an opinion.

But you are in the house to test for radon, not to perform an inspection. Good question.

[Matt Fellman]

Without knowing more specifics it's tough to say but I'd probably try to alert the buyer but kind of play dumb. For example, tell them (or document?), "in looking around while setting up the test I noticed a big crack in the foundation that could lead to an elevated level of radon gas entry. Of course, it could also have other implications. You'd better have that checked out."

This comes up occasionally when someone just wants a pest/dry rot inspection (in Oregon inspectors do both pest and whole house). You're there for the pest inspection but just about get electrocuted by a wire hanging from the ceiling..... do you tell them? If so, where does it end? Luckily, pest/dry rot only inspections are very rare but it's always a bit of a tap dancing effort.

[Nathan Thornberry]

You're incredibly unlikely to be sued. Don't let anyone tell you otherwise.

If you're there to do a radon test, and you see a radon entry point...I don't see why you'd say anything. The test will show elevated levels or it won't. If the entry point isn't actually causing elevated levels...why concern your client?

if they come back elevated the mitigator will certainly fix it.

[Jack Feldmann]

If I'm hired to do a radon test, that's all I'm doing. Like Nathan said, the test will show if there is radon there or not. If I see a big hole in the basement slab (that could be entry for radon), am I going to say, "Don't bother testing, you have a hole there that might make levels higher"? No, I'm going to do the test I was contracted for and see what the levels are.

Unless I saw a life safety issue, I would keep my mouth shut. I do some radon only work. When I walk up to the house and see rotted wood at the front door frame, I don't mention it. I'm not there as a home inspector, I'm there to test for radon.

Where do you stop? See rotted wood at the door? Might as well look at all the doors and windows while I'm at it. As I'm walking around the house, I see an FP panel. Should I open that as well? Tell them there might be problems? I also notice a downspout dumping next to the foundation and the ground is sloped toward the foundation. Should I bring my moisture meter in and check the walls when I place the monitor?

If I'm there to only do radon, that's all I'm going to do, and comment on, unless I happen to see something that is a life safety hazard.

[Matt Fellman]

You're incredibly unlikely to be sued. Don't let anyone tell you otherwise.


I'll tell you otherwise :)

Modern day lawsuits include ANYONE who has stepped foot on the property and collected cashola. I'm not saying it's right or will stick but it's a fact. And, realistically, there's not much the OP can do to prevent it but the phrase "incredibly unlikely to be sued" on a HI forum is almost an oxymoron.

[Nathan Thornberry]

An inspector is incredibly unlikely to be sued. It's a fact.

I cover the E & O deductibles for around 4,000 inspectors. Indisputable. We don't get many claims.

Face facts: there are E & O policies out there for well under $2000. That means the average inspector has well under $2000 worth of liability. Insurance companies make money. Think about it-


But let's start with you. How many times have you personally been sued for inspection related issues?

[Raymond Wand]

You don't get many claims? But you do get claims, right? How many claims do you get?
And what do you mean you cover the deductible? Are you selling E&O policies?

I know of 4 inspectors who have recently been sued and I know that 3 of the claims are meritless.

[Jack Feldmann]

I've been sued ONCE in 25 years. Out of the 25 or so guys in my ASHI chapter, there have only been 4 lawsuits since 1994.
We all must be lucky.

[Raymond Wand]

Jack
I was sued back in 94 for a latent defect, insurers settled out of court for $22k.

[Nathan Thornberry]

Jack
I was sued back in 94 for a latent defect, insurers settled out of court for $22k.


$22,000 in ten years. That's nothing compared to what you brought in!

By the way, that was probably one of the larger suits that year that your insurer had to deal with.


In response to the post above about E & O, let me clarify:

1. Yes, I get a lot of warranty claims. Things leak, break, and crack all the time. It's why we're here.
2. No, I do not sell E & O insurance. I do work in cooperation with nearly every insurer out there on claims to help reduce liability for inspectors.
3. When you utilize our services, we cover your E & O deductible. So when one of my 4000+ clients has an E & O claim I am notified. And I write a check...and I don't forget those!


Email me if you have questions or want details, I don't do sales pitches on forums:

nathan@nathanthornberry.com

[Lon Henderson]

Jack
I was sued back in 94 for a latent defect, insurers settled out of court for $22k.

If insurers would actually fight, there would be even fewer payouts. Our NAHI chapter just had an attorney who specializes in working with HIs speak to us. He told us that in the 18 years that he's been working with HIs, all but a couple of suits had been settled for more than the deductible and only a couple seemed legitimate.

[Marshall Brown]

There is a concept call higher expectations that may come in to an issue like this. Based on your training it is reasonable to have higher expectations of your ability to see a problem than a lay person. If what you see could reasonably be expected to constitute a danger to person or property than you have an obligation to bring it to the attention of those concerned.

If what you see doesn't constitute a danger to person or property, is it information that you would typically be paid to provide? If so then you might inform the client that you do provide services to help identify problems that might contribute to elevated levels of Radon and advise of possible remedies.

[Don Hester]

Okay, If I see something that is of a concern to my client when performing another specific inspection. I would find it negligent on my part not to mention something.

Lets say I am brought in to evaluate a specific problem, example ventilation/moisture of a crawlspace. While down there I see some very sketchy electrical work (none of us have seen this so it is all hypothetical ;). I would not feel that it was my duty to at least warn my client that they need this evaluated and there is potential safety concerns.

Think of that good will as great advertising versus getting your bottom in court.

Lets say you are drug into court and you are questioned, "Yes judge/prosecutor there was improper wiring performed that could result in shock, electrocution and/or fire, yep I said something. When evaluated by a licensed electrician what did they say?"

I just do what is right and if someone wants to sue me so be it. So far that has not happened.

- - - Updated - - -

Okay, If I see something that is of a concern to my client when performing another specific inspection. I would find it negligent on my part not to mention something.

Lets say I am brought in to evaluate a specific problem, example ventilation/moisture of a crawlspace. While down there I see some very sketchy electrical work (none of us have seen this so it is all hypothetical ;). I would not feel that it was my duty to at least warn my client that they need this evaluated and there is potential safety concerns.

Think of that good will as great advertising versus getting your bottom in court.

Lets say you are drug into court and you are questioned, "Yes judge/prosecutor there was improper wiring performed that could result in shock, electrocution and/or fire, yep I said something. When evaluated by a licensed electrician what did they say?"

I just do what is right and if someone wants to sue me so be it. So far that has not happened.

[Matt Fellman]

An inspector is incredibly unlikely to be sued. It's a fact.



As a general rule of statistics I'd agree. I was more saying if someone else is sued for something on a property that you have inspected you are likely to be named as well.

It's happened to my company twice in the last 5 years (one actual lawsuit, one just a lot of threats). We were named and we had absolutely nothing to do with the claim..... aside from just being on the property. It's just a fact of life with the way the lawyers work these days. Can you help prevent others being sued by pointing stuff out that is outside your scope? Not sure.... and I'm not advocating doing so.

[Don Hester]

That is the problem with some of these lawsuits. Anyone who can be drug in will be.

There was a case here in Washington last year that the judge dismissed the charges because the buyers did perform what in his mind was due diligence in following up on a rot issue.

It was a sad case and the buyers probably got screwed. The house was a complete knock down and there seemed to be enough evidence that the seller (who where Realtors) willingly covered up some of the issues and most likely misleading (at best) or fraudulent on the form 17 disclosure form.

[Jack Feldmann]

Okay, If I see something that is of a concern to my client when performing another specific inspection. I would find it negligent on my part not to mention something.

Lets say I am brought in to evaluate a specific problem, example ventilation/moisture of a crawlspace. While down there I see some very sketchy electrical work (none of us have seen this so it is all hypothetical ;). I would not feel that it was my duty to at least warn my client that they need this evaluated and there is potential safety concerns.

Think of that good will as great advertising versus getting your bottom in court.

Lets say you are drug into court and you are questioned, "Yes judge/prosecutor there was improper wiring performed that could result in shock, electrocution and/or fire, yep I said something. When evaluated by a licensed electrician what did they say?"

I just do what is right and if someone wants to sue me so be it. So far that has not happened.

- - - Updated - - -

Okay, If I see something that is of a concern to my client when performing another specific inspection. I would find it negligent on my part not to mention something.

Lets say I am brought in to evaluate a specific problem, example ventilation/moisture of a crawlspace. While down there I see some very sketchy electrical work (none of us have seen this so it is all hypothetical ;). I would not feel that it was my duty to at least warn my client that they need this evaluated and there is potential safety concerns.

Think of that good will as great advertising versus getting your bottom in court.

Lets say you are drug into court and you are questioned, "Yes judge/prosecutor there was improper wiring performed that could result in shock, electrocution and/or fire, yep I said something. When evaluated by a licensed electrician what did they say?"

I just do what is right and if someone wants to sue me so be it. So far that has not happened.

Don, the OP had a question about doing a radon test. Your description is quite a bit different. You are describing a partial home inspection, and there could be a problem not disclosing something else going on.
Your scenario is a perfect example of why I will not do partial inspections, and how I explain why I won't. I tell them that I am not comfortable only looking at the crawlspace framing. I ask them how I could ignore electrical or plumbing issues (not being paid to evaluate plumbing or electrical). And, how could I evaluate the plumbing in the crawlspace without running water? Now I'm doing bathroom and kitchen inspections. I might as well do a full inspection if I am going to check plumbing, electrical and HVAC (ducts in crawlspace).

But doing a radon test only? I walk in the house with blinders on. I was only hired to do radon.

[Don Hester]

Jack, I really do understand your point of view. I do not see the difference, I am hired for a specific purpose only.

I am also a structural pest inspector and sometimes I am just doing that. So I would still will be in the same situation since I have to basically comb the home for conducive conditions, rot and WDI's.

I just do not think I could let a safety issue go by. I would still say something. That is me and my opinion only and fully understand your view. But if you are going to use blinders it can be for anything.

[Jack Feldmann]

Don,
I think you missed some important points.
The original question had to to with doing a radon test and seeing something that might affect the testing. No mention of safety issues.
Second, if you re-read my post, I said that if I saw something that was a safety issue I would inform them. I think most of us here would mention something that was a safety issue.

But if someone calls you to look in their attic because they think they don't have enough insulation, are you going to go into the bathroom and check the floor around the toilet? If the floor was rotted, they could fall thru! Or check the furnace and/or water heater vents?

My point is, where do you stop? Getting paid to do a partial inspection, and you end up doing a full inspection because you are worried about being sued for not mentioning something? That just doesn't make any sense, either doing it, or being worried you might get sued for something like that.

[Nathan Thornberry]

If insurers would actually fight, there would be even fewer payouts. Our NAHI chapter just had an attorney who specializes in working with HIs speak to us. He told us that in the 18 years that he's been working with HIs, all but a couple of suits had been settled for more than the deductible and only a couple seemed legitimate.


He's got his story straight.

I don't think I'd like claims any lower. It will cost you guys big bucks if they get any lower through aggressive litigation.

[Nick Ostrowski]

I agree with Jack. If all you are there for is to do a radon test, that's all you are there for.