Managing slab foundation liability
Why is there so much Home Inspector concern about foundation liability?
On the surface, it is not obvious why foundation repair is feared as much as it is. There are solid reasons why slab foundations should not be magnets for lawsuits:
Foundations do not cause physical injury
Have you ever heard of a slab foundation that has physically injured anyone? Slab foundations are ground-supported structures, unlike, say, bridges. Because they are continuously ground supported they cannot collapse. For this reason alone, foundation lawsuits are of no interest to competent plaintiff attorneys.
You have never seen and never will see a highway billboard or advertisement saying that if you have been in a slab foundation accident you should call a phone number for a self-described mean, tough attorney.
What you do see all over town are billboard ads directed at people who have been in a wreck with a “big rig truck” an industrial accident, or certain medical issues.
Competent plaintiff attorneys are looking for a case where there is a responsible defendant who has deep pockets and a plaintiff who has suffered a visible injury.
Home Inspectors and Engineers do not have deep pockets
Plaintiff attorneys have no interest in filing lawsuits against people or corporations that have no assets. They go after entities that have deep pockets, to use the language attorneys use. With rare exceptions, individuals do not have deep pockets. In Texas, there is a great deal of legal protection for debtors. This makes it very difficult for a plaintiff to get much even if he or she wins a judgment.
Foundation repair is not highly expensive
It is a myth that foundation repair is expensive. I do not claim that it is cheap, but it is less expensive than many other major home repairs. The average foundation repair job is around $8,500. The typical roof replacement is around $10,000 to $15,000. The same is true of replacing the siding on many homes. Replacing an outside air conditioning unit, the evaporator coil and the furnace can easily exceed the average cost of underpinning a foundation.
The fear is due to misinformation
So why does the public have so much fear of foundations? I contend that it is because almost everything they think they know is from foundation repair contractor ads and those ads are based on fear for the most part.
It is well understood in the sales and marketing world that fear and greed are the two most powerful motivators for people to buy something. Nobody would buy a sales proposition that claims that having your foundation repaired will make you rich, enhance your sex life, give you more energy or cure your arthritis. They might fall for a pitch that says you cannot sell your house, or insects and vermin will enter your house, or that your foundation violates a building code so you have no choice but to sign a repair agreement.
All if this, of course, is either entirely false or, at best, highly misleading.
How to deal with bad information
The only way to deal with bad information is with good information. One of the things I address is what I consider the bare minimum that you need to know to counter the many false things your buyers, sellers and real estate agents believe.
What makes me qualified?
Two lawsuits
I have been served twice. One suit was dismissed never to return. The other went to trial, but was settled at the order of the judge.
Expert witness in numerous suits
I cannot count in how many cases I have been a designated expert witness. I have learned something new from each case. I am not a lawyer and do not aspire to one. I do, however, bring a different perspective that I am convinced most home inspectors would benefit from.
A good lawyer can be of enormous help in addressing and resolving a legal problem such as a lawsuit. I can help you understand the process and show you ways to avoid lawsuits and reduce potential monetary losses should you get caught up in s suit.
Over thirty years experience designing, building and assessing the performance of slab on ground foundations
There are three technical areas you have to be familiar with to become a master of evaluating the performance of slab-on-ground foundations.
The conceptual model that underlies the design procedure for slab-on-ground foundations in expansive soils. Do not let this intimidate you, there is no need for any math other than very simple math. If you took algebra in high school, you are in fine shape. If not, it is still easy to learn what you need.
How slab foundations are constructed and finished. You can learn this from watching YouTube videos or by watching several slab foundations as they are constructed.
How slab bending distorts a wood frame structure. This is the most problemical aspect for a non-engineer, but it is not that hard to learn what you need to know.
Understanding the real reason lawsuits happen
If you are like most people, you probably think that people file lawsuits because they have been wronged and they are seeking to become whole. In my experience, people most often file suits because they are angry. They feel like they were misled or even outright lied to.
Legal arguments versus jury arguments
There is a saying among lawyers: If the law is on your side, argue the law, if the facts are on your side, argue the facts, if neither is on your side, argue with great passion.
Arguments based on the law
This can best be explained with an example: If the judge rules that a limitation of liability clause is enforceable, it is game over. The facts of the case do not matter. Only the judge is allowed, typically, to rule on the law. The jury can only apply the law, as explained to them by the judge, to the facts as presented in the trial.
Arguments based on the facts
Arguments based on the facts are jury arguments. The jury must decide based solely on the testimony presented in the courtroom, what is true and what is not. If a jury finds that you violated the applicable standard of care, you will lose the case.
Why legal arguments are your best bet
Given that someone has filed a suit against you, the best resolution is to block any legal action against you by being able to point out to a judge that there is some legal requirement that the plaintiff has not or cannot meet.
The advantages are two-fold. First, the case may be resolved quickly. Second, the legal issue will be decided by a judge with no jury present. Quick and easy. Any time your attorney can show, as a matter of law, that the suit cannot move forward it is to your advantage to press on in that direction.
Let me give you an example. In my second suit, the plaintiff’s attorney filed the suit without a written statement that cited how I had failed to uphold the applicable standard of care. In suits against architects, engineers and landscape architects, the law is that the judge must dismiss the suit if this document is missing. It must be filed with the other documents required in the filing.
When I retained an attorney, he was not aware of this law and was clearly skeptical that it required that the judge dismiss the suit. He called me a few days later with what he called great news. The law was exactly as I described it and, even better, two appellate courts had ruled that the law was enforceable.
Next, he told me that there was still a problem. The judge had to dismiss but did not have to dismiss with prejudice, meaning that they could correct the paperwork and refile. I told him that, actually, they could not refile. He assured me that they could. I repeated that they could not and told him to go back and reread the original filing. In that filing they laid out a chronology wherein they cited a specific date when they discovered the “problem.” They had filed just under the 2-year deadline. Technically, the judge could not dismiss with prejudice, but it might as well have been the case that she could and did.
Product liability versus standard of care liability
Problems with the concept of standard of care
The problems with the concept of a standard of care begin with the definition. In essence, any professional has a duty to provide a service that is consistent with
The following is a paraphrase of Wikipedia says about the term Standard of Care.
In certain industries and professions, the standard of care is determined by the standard that would be exercised by the reasonably prudent professional in that line of work. The standard of care is important because it determines the level of negligence required to state a valid cause of action.
Clearly, the definition assumes that there is some objective meaning to the concept of a “reasonably prudent professional.” How exactly does one discover the standard of care that would be exercised by a reasonably prudent professional in a specific situation? The key word here is “discover.”
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Why the TREC SOP will be used as a standard of care
Because of the expense of actually discovering the applicable Standard of Care, what happens in almost every case is that the TREC SOP will be used as a Standard of Care. Bear in mind that, while it is true that the TREC SOP does play an important role in determining in the applicable Standard of Care, it is not the whole of the applicable Standard of Care. Different inspectors interpret the TREC SOP differently and apply it to specific situations differently.
The importance of staying within your Standards of Practice
I agree with attorney Joe Ferry that you are better off complying with and staying within the TREC SOP. If there is a reason why you cannot comply, you are better off stating that reason in the report than having to explain later.
If you go beyond the TREC SOP, you run the risk of opening up an unnecessary line of attack for a plaintiff attorney.
There may be situations where it is appropriate to go beyond the TREC SOP so you have to decide this on a case by case basis.
Facts about lawyers and courtroom procedure you need to understand
Why your lawyer is almost certainly not a competent trial attorney
The occupation of trial attorney is an endangered species. It is difficult to find an attorney who has as little as a dozen trials under his or her belt. If someone files a lawsuit against you, it is almost a dead certainty that it will never go to trial. These cases almost always are negotiated out.
If you are looking to be vindicated or just want to see justice done, the courtroom is not where it is to be found.
Why your attorney will not move to dismiss your case
In the case of mine where it went to trial, I asked my attorney why we did not ask the judge to dismiss the case since it was obvious that even if every element of the plaintiff’s case was true, there still were no actual damages. The damages they claimed were mere speculation.
He explained to me that I was correct in my assessment, but was missing the most important point. The most important point being that the insurance company looked at the case as a $100,000 liability. It was my attorney’s job to get as much of that $100,000 for his firm and for the plaintiff attorney to get as much of the $100,000 for his firm.
Dismissing the case was not in the interest of either attorney.
What voir dire is and why it is important
Voir dire is the process in which by the attorneys question prospective jurors to determine their fitness for serving on a jury. Voir dire is the first opportunity that jurors have to see the defendant, the plaintiff, and the attorneys. It is also is the first time the prospective jurors have to hear the story behind the suit.
Prospective jurors are human beings and as such, they form first impressions. There is a lot of evidence that many prospective jurors begin to lean in ond direction or another as early as voir dire.
The opening statement and why it is important
After voir dire, the next step is to present opening statements. jing nt hear
Why defendants are always at a disadvantage
In a Standard of Care suit, the defense will always be that you met the bare minimum. This is the essence of your defense: I did just enough to get by.
The plaintiff will argue that if you had only done a tiny bit more, everything would be okay. They will have an expert who will testify that, given the specific circumstances at the time, it was foreseeable that if he failed to do just a tiny bit more, the buyer would suffer a great harm.
Why no one wins a lawsuit except for the attorneys
You have heard this before and it is true. Here is a story that illustrates just how bad this is.
In my first suit, I asked my attorney why he did not told me whatnmytireeuThid
Legal arguments that might be available
Limitation of liability clauses
Properly worded and presented, a limitation of liability clause is enforceable in Texas and is effective in preventing nuisance suits from proceeding or even being instigated in the first place.
I have heard every argument there is against the use of these clauses. Joe Ferry, a well know attorney specializing in defending home inspectors, does not like them. He argues that, when you use such a clause, you are giving the impression that your work is substandard. I admit he has a point, but in the end, your clients will judge you and refer you on the basis of your work and your report, not on some clause in a service agreement.
Ferry also argues that this clause cannot protect you from a suit by a seller or anyone else who is not a signatory to the agreement. Again, he has a valid point, but he ignores the fact that the purpose of the clause is to stop nuisance suits brought by buyers. Ferry seems to believe that suits brought by third parties are common. In my experience, that is simply not true.
A powerful argument available to Professional Engineers
In Texas, when a suit is filed against a Texas Professional Engineer,
Contractual barriers to nuisance suits
Writing your report to support jury arguments
Understanding the role of the TREC SOP
What the SOP actually requires
Your opinion of the performance of the foundation based on your training and experience
Your opinion must be based on your interpretation of the specific signs of distress cited in the TREC SOP
Writing your report to avoid obvious legal liabilities
Encouraging buyer to ignore the sales contract
I know, you are asking why and how would a home inspector encourage a buyer to ignore the sales contract. I see this at least once a week. Here is what happens. The inspector recommends a second opinion on the foundation by saying they should talk to a foundation expert or, worse, a foundation repair contractor.
The irony of this is that the home inspector usually makes these recommendations in part because he or she is reducing any future liability regarding the foundation. Some of you are saying to yourself: how does this create a liability problem? The explanation is very simple. The standard TREC sales agreement states that the buyer can retain an inspector or inspectors of their choice so long as they are licensed by TREC or are otherwise permitted by law to make such inspections.
Here is the problem: self-described foundation experts and repair contractors are not licensed or permitted by law to make inspections in a real estate transaction.
When you tell a home buyer in a real estate transaction to use an unlicensed person to make an inspection, you are setting yourself up for a tortuous interference with a contract suit.
Writing in the report what can be expected during the life of the house
In my opinion, this is critically important. In every report I issue you will find a statement like this:
This is a slab-on-ground foundation. Due to the expansive soils found in this area, it is common for the house to develop cracks in drywall, brick veneer and stucco during the life of the house. Expansive soil movement also will commonly result to door issues such as distorted door frames.
You are providing an independent opinion concerning the performance if the foundation
Include in the report that you are providing an independent, unbiased, subjective opinion regarding the performance of the foundation based on your training and experience. Be sure to note that other professionals may have different opinions.
This last statement is critical.
Refer your clients to the HoustonSlabFoundations.com website.
There is a huge amount of information there to educate your buyer and that your attorney can use to defend you in court. I would go so far as to say that, if every Houston area home buyer was required to read the material in this website, the number of foundation related lawsuits and foundation repair jobs would drop sharply.
Write in your report that foundation repair is usually an option, not a requirement for safety purposes.
Pay close attention to your client.
If they are overly concerned about the foundation you should be very careful in your wording. If they are irrationally concerned about the foundation or unrealistic in their expectations, then you are foolish not to recommend a second opinion from a Professional Engineer.
An example of an unrealistic home buyer
Here is an example from my files of an unrealistic buyer: A buyer buying a 40-year-old house that has been underpinned three times by three different contractors. The buyer says he wants to make sure he does not ever have any foundation problems or issues. He explicitly tells you that he does not want to deal with any foundation problems when it is time to sell.
A buyer like this should be avoided. In most cases, he is not going to show his colors until after you meet him at the house. Write your report as if it will be used as a court document. Also, be sure to recommend a second opinion from a Professional Engineer.
The most common misconceptions about slab-on-ground foundations
Slab foundations are constructed level
This is not even remotely true.
If a house on a slab foundation shows signs of foundation movement such as cracks in the brick veneer or drywall, the foundation needs to be repaired
This is wrong on numerous levels.
If a slab foundation is out of level by some amount, the foundation should be releveled
Here is a direct quote from an Army Corps of Engineers manual titled Foundations In Expansive Soils:
Most slab foundations that experience some distress
are not damaged sufficiently to warrant repairs.
Notice that there is no mention of levelness or even elevation measurements of any kind. The Army Corps of Engineers uses damage due to foundation movement, not levelness, as a performance/repair criteria.
Distress commonly assumed to be due to foundation movement
The Foundation Performance Association publishes a document that lists many different types of distress that are commonly attributed to foundation movement but which are not usually caused by foundation movement. Every home inspector should read and reread this document very carefully. The title of the document is Distress Phenomena Often Mistakenly Attributed To Foundation Movement.
A few examples of the distress phenomena described in the document are listed below:
- masonry cracks along steel lintels
- spalled concrete at corners of foundations supporting brick walls
- sags and cracks in ceiling drywall
- cracks in coffered, gambrel and vaulted ceilings
- doors that open and close on their own, sometimes ghosting doors
- doors that do not latch
Slab foundation second opinion triggers
The house was constructed before 1980
Prior to 1980, it was common to design slab foundations with an eye toward making sure that the loads imposed on the soil by the foundation, the house, and the contents would not result in an excessive amount of settlement. It was not commonly understood in the engineering community that a slab foundation in an expansive soil area needed to be designed for stiffness, not just bearing capacity.
By the 1960s, a growing number of engineers were working on empirical methods of slab foundation design that focused on making the foundation stiffer. Some of these methods worked better than others, but there was a serious problem with all of them. They were empirical and what worked in one location might not work in another. What worked for one engineer might not work for another. In other words, design methods that resulted in successful designs in San Antonio would not necessarily work in Houston or even in Austin.
What was needed was what is called in the engineering world a rational design method. A rational design method is based on a scientific understanding of how a slab foundation interacts with the supporting soil. tdning a i ng
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The house is a large, expensive home
The house has been underpinned in the past
The best marker or metric for predicting if a house foundation will be underpinned in the future is a history of foundation repair. This flies in the face of what too many people think they know. They have listened to far too many ads that say something like, Fix It Right, Fix For Good.
I strongly recommend that you encourage anyone who is buying a previously underpinned house to order an engineering report on the foundation.
The house has one or more add-on foundations
I know many readers are asking what is an add-on foundation? An add-on foundation is simply a foundation that was an addition to an original foundation. They are usually small compared to the original foundation, but I have seen situations where they are larger than the original foundation.
It is inevitable that the original foundation and any add-on foundations will move differentially over time. Typically, the add-on foundation will tilt away from the original foundation. They may also drift away from each other laterally.
This does not normally cause significant structural issues, but it can cause very noticeable distress, physical distress in the house and emotional distress in the owner.
The house is on a ravine, bayou, creek or a lot that has a lot of slope
Houses that are on sloped sites are far more likely to experience future foundation problem than comparable houses on relatively flat sites. I think home inspectors are fooling to take the risk these homes pose. I simply turn them down.
Large expensive homes
Like homes on sloped sites, these homes are not worth the risk. The design methods we have for slab foundations on expansive soils were developed for small, simple rectangular foundations. The more complex the foundation shape and the larger the foundation, the more problematical it becomes to apply the design procedures in a straightforward way.
Many, perhaps most, of these foundations are designed conservatively so they probably do not pose more of a risk of future foundation issues than smaller, simpler houses, but that is certainly sometimes the case.
How to handle an unhappy client
The most important thing to do is to be patient and helpful
Offer to help find a Professional Engineer to assess the situation
Ideally, it is better for everyone if you stand back and observe. who
Meet with the buyer and the engineer
Be wary of a buyer who has solicited bids from repair contractors, but do not be intimidated
The following is a true story. Rather than bore you with the details, I will cut right to the chase. A lady demands that I pay for underpinning her house because, she said, she had a stack of reports that say she had to underpin the foundation. She thought she had an open and shut case because she had a stack of paper, reported reports.
I asked to see them. She refused. I asked who made the reports, engineers, home inspectors or repair contractors? She said repair contractors, real experts. I knew right there that she had nothing that would back up her claim that she had to repair the foundation. Repair contractors do not and cannot provide an unbiased, independent assessment of the need for foundation repair. They recommend and propose. They do not and, in my opinion, cannot legally tell people that they have to repair their foundation.
Repair contractors do not and cannot provide an unbiased, independent assessment of the need for foundation repair. They recommend and propose. They do not and, in my opinion, cannot legally tell people that they have to repair their foundation. That would be a clear case of practicing engineering without a license.
I asked that she show me one, just one, report that said she had to underpin the foundation. She went through several before slamming them down saying she knew it was in there but was too upset to find it.
