Nick,
I fail to see where comparative negligence plays a part in the scenarios you presented, other than when highlighting that the client was told to seek further evaluation prior to the purchase. In that scenario, there is no comparative neglivence at all, as the client paid an inspection professional for an opinion, and the opinion delivered was to seek further evaluation by a subject matter expert. Ergo, there would be NO negligence on the inspector’s part.
Comparative negligence used to be called contributory negligence, and assumes that both parties had a part in the loss. It used to be most commonly invoked by the defence in civil liability trials involving personal injury. The easiest example is the drunk who wanders into the road and gets struck by the driver of a car. In this instance, the notion of contributory negligence is introduced in that the victim was drunk and wandered into oncoming traffic, contributing to his own injuries. It was after this, then the concept of the age of reason came into play, where some people are incapable of knowingly contributing to their own demise (like children) and therefore contributory negligence could not be a factor.
I also fail to see how “informing the client” helps mitigate inspector negligence or incompetence. Providing the client a home maintenance book has no bearing in the outcome of a poorly performed inspection.
While the article was well written, it lacks substance as to how comparative negligence works, examples of how it can be deployed, and the difference between this and simply stating that the inspector did nothing wrong.
Each state is different. I PA for instance, if the Comparative Negligence Act does not apply due to the absence of personal injury or property damage (such as home inspection cases, because the inspector doesn’t create the damage by failing to find it), the parties revert to the doctrine of contributory negligence which bars recovery if the plaintiff’s negligence has contributed in any way to the economic loss. Wescoat v. Northwest Savings Association, 378 Pa. Super. 295, 302-303, 548 A.2d 619, 623 (1988).
Ahhh, these threads are better than a strong cup of coffee in the morning. For the record, I see both sides here.
Jim