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Topic:   Interesting sump pump question... - 912 visits (1 today, 4 this week)

Mike Glazer
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posted January 24, 2006 05:23 PM         

Hi everyone!

I haven't posted here in around a year. I hope everyone had a great New Years!

As you may remember, I'm an attorney, not an inspector, but I have an issue on my hands for which you may have some experience, and can offer some words of wisdom...

The straightforward situation is the following:

Buyer has home inspected. It 'passes'.

The buyer signs and takes possession on the same day.

That evening, the buyer goes downstairs to check out her new home, only to find lots of water all over the basement!

Turns out the sump pump stopped working that very night.

Wow.

Okay, so the pump was under warranty and repaired.

My question for you guys is what have you seen happen in similar situations...

Poor buyer is so upset. 6 hours into her new purchase and the sump pump dies.

Have you ever encountered a similar situation, where something goes wrong right after a sale...

The fact that it is a separate 'machine' throws a little bit of a twist to the situation.

If you buy a house, and that night, the balcony crumbles, well, here in my jurisdiction, the seller is quite responsible.

I am just wondering what you guys have seen happen in a similar circumstance.

It's not 100% clear-cut.

Any thoughts on this?

Thanks!

Mike

Rick Hurst
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posted January 24, 2006 06:02 PM            

Mike,

That sump pump is simply a piece of mechanical equipment which can fail at any time.

I tell my clients that a HI is basically a picture or a snapshot of time while we are there.

After we're gone, any thing is possible for failure.

What do I do when I receive a call from a buyer with such a problem? I offer my sympathy and say "Welcome to Homeownership".

Remind them that I told them to expect things to fail and breakdown. Its Life.

Now lets figure how to shop for a repairman and get it fixed.

At their expense.

Rick

Jerry Peck
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posted January 24, 2006 07:44 PM            

Mike,

First, to clarify a point or two.

"Buyer has home inspected. It 'passes'."

Houses DO NOT "pass" or "fail", they all have problems, some more than others, some have (we find) quite simple 'committed suicide' over the years and are dead and done for (the deal, that is, not the house).

"The buyer signs and takes possession on the same day."

I don't know about "up there", but down here, that would have put the inspection well outside the inspection time contingency period.

quote:

---

That evening, the buyer goes downstairs to check out her new home, only to find lots of water all over the basement!

Turns out the sump pump stopped working that very night.

Wow.

---

I agree, WOW!

But crap happens, things die, things break, at any time, without warning too.

"Okay, so the pump was under warranty and repaired."

Excellent! I was expecting a horror story (I know, to the buyer, that IS a horror story), but not as much as having to pay for it out-of-pocket.

"My question for you guys is what have you seen happen in similar situations..."

I've heard of it happening on occasion, but I doubt something like that happens real often.

"The fact that it is a separate 'machine' throws a little bit of a twist to the situation."

That part I don't understand "separate machine", it is a component in a "system" in the house. In fact, the sump pump is a component of several systems: electrical system, plumbing system, drainage system, to name a few.

"If you buy a house, and that night, the balcony crumbles, well, here in my jurisdiction, the seller is quite responsible."

Curious ... How? Unless they were aware of it and hid it?

"It's not 100% clear-cut."

Not "clear-cut" what? Had the seller had problems with it in the past and improper repairs were made? Did the seller make "temporary" repairs to get it to work long enough to close? Did the seller repair it, and repair it, and repair, even though a plumber advised them to replace it?

"Any thoughts on this?"

I think stuff like that happening THAT NIGHT is not real common, but I am also sure that it DOES happen. Of course, in the course of normal events, there are days, weeks, even months between the inspection and closing ... not the next day.

Still, anything can fail, at any time, and will most likely fail at the worst possible time. (That last part is because almost regardless of "when" it fails, it is the "worst possible time".)

------------------
Jerry Peck
South Florida

[This message has been edited by Jerry Peck (edited January 24, 2006).]

Mike Glazer
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posted January 24, 2006 08:15 PM         

Hi guys!

Thanks for the great replies.

I KNEW somebody would nail me on the "house passes" comment!

What I meant to say (more specifically) was that there was no problem reported with respect to the sump pump. It passed.

The sump pump was repaired under warranty, however, there was $8,000 damage to the basement. Walls. Floors. Carpets. You name it.

How's that for a bit of a horror story, Jerry?!

With respect to my balcony issue, that would be called a latent defect "vice cachee" here in Quebec.

The seller does not have to be aware of the defect. It must merely be a defect that is not apparent, and cannot be discovered without resorting to invasive means.

So, for example, if the switch of the sump pump was not tested by buyer/inspector, and is broken, well, that is an apparent defect. ANYONE should at least have turned it on to test it before buying it.

However, with respect to the internal mechanical workings of a machine, if there was something wrong with it, or if it does not perform like it should, that is a latent defect. Not concealed (ie. deliberate), but latent nonetheless. That is grounds for a successful lawsuit.

If we leave the house issue aside... let's say I walk into Wal-Mart (and they have no return policy) and I buy a sump pump that dies within a few weeks.

In Court, that's a slam dunk. A sump pump should last 5, 10, however many years. Therefore, there was certainly a latent defect, since it didn't live as long as it "should". Every item here is sold with an implicit warranty of quality.

With respect to referring to the sump pump as a separate machine, I meant it is a separate component, still under manufacturer's warranty, and the manufacturer did replace it.

Is the manufacturer liable for consequential damages? Good question! That also depends on a few factors.

Even though are laws are different, I figured that this is sure not the first time that a component under warranty caused damages within a few days/hours/weeks of the sale. I don't practise in this area much, so I figured you guys may have seen similar cases, where time and time again, the buyer is shafted, or conversely, the seller has to shell out the cash.

The limit here for small claims is $7,000, so that could end up being the course of action...

Jerry Peck
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posted January 24, 2006 08:36 PM            

Mike,

quote:

---

If we leave the house issue aside... let's say I walk into Wal-Mart (and they have no return policy) and I buy a sump pump that dies within a few weeks.

In Court, that's a slam dunk. A sump pump should last 5, 10, however many years. Therefore, there was certainly a latent defect, since it didn't live as long as it "should". Every item here is sold with an implicit warranty of quality.

---

I believe that is called "merchantability", it was manufactured, advertised, and sold as being capable of serving a specific purpose, and it must be capable of serving that specific purpose for the advertised (or expected normal) life of the product. (I got that close to right, I think?)

"With respect to referring to the sump pump as a separate machine, I meant it is a separate component, still under manufacturer's warranty, and the manufacturer did replace it."

Okay, NOW we are getting somewhere.

To have been under warranty, either the house was new, or the sump pump was "newer", right?

"Is the manufacturer liable for consequential damages? Good question! That also depends on a few factors."

I would agree that "it depends".

"The limit here for small claims is $7,000, so that could end up being the course of action..."

I know you are an attorney, but, if small claims is $7,000 and "there was $8,000 damage to the basement. Walls. Floors. Carpets. You name it.", then is it worth it to use an attorney (you) to file a court action, or would it be better for the buyer to file small claims for the $7,000 maximum and just lose the $1,000 (I cannot imagine you handling that for less than $1,000, which would make the buyer break even???).

Just my logic trying to work the logic out.

Here is another example of that: I did a draw inspection the other day, the owners consultant said the payments to the contractor were "excessive" because the contractor did not disclose to us that he had already received a deposit, and, thus, would get paid that money twice.

I looked at the number the consultant supplied, compared it to the draws submitted by the contractor, and, indeed, the contractor HAD disclosed "prior payments" on the FIRST draw of an amount roughly equal to that deposit. There was a discrepancy of $411.01.

I advised the owner's consultant that what he was asking was outside the scope of our draw inspections, however, IF THEY WANTED TOO, they could pay us $750 to go through all of the numbers and find that $411.01. I also advised them that, in *MY opinion*, they should do that , but, *in reality*, "WHY?".

Sad to say, but they did not chose to have me find the "missing" $411.01.

------------------
Jerry Peck
South Florida

Gunnar Alquist
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posted January 24, 2006 08:49 PM            

Mike,

Several years ago I received a call from a seller informing me that I "broke" their furnace. Now, my inspection of a furnace is essentially rudimentary. I will look into the front of the burner compartment, check for gas leaks, flue connections and turn the unit on. Nothing invasive, yet the furnace no longer functioned and the seller was (understandably) unhappy. The truth is that I have no idea what I could have done to "break" the furnace. The furnace contractor indicated that it was just coincidence. Hasn't happened since.

For what it's worth.

Mike Glazer
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posted January 24, 2006 10:05 PM         

Very interesting.

Yes, what you are describing (merchantability) is pretty much how the law works here.

Fitness of quality; fitness of use; warranty of quality... all these things....

As for the small claims thing, very good question! This person is a friend of mine, so anything I do is free anyhow!

I think the course of action is quite simply a demand letter to the manufacturer of the sump pump; the store where it was purchased; and the sellers, too.

Sue 'em all, and see what happens.

The bottom line (at least from a moral perspective) is that when you buy a house with a 6 month old sump pump, and it craps out the night you take possession, and you have a foot of water in the basement...

...well, it's not right that the buyer should shoulder the burden.

We shall see.......!

Michael Thomas
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posted January 25, 2006 08:43 AM            

Sue em' all and let God sort em' out, eh?

Mike Glazer
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posted January 25, 2006 09:14 AM         

Exactly!

Makes for a wonderful T-shirt!

Bob Harper
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posted January 25, 2006 01:28 PM            

I agree w/ Jerry on the Implied Warranty of Merchantability and possibly Fitness For A Particular Purpose (sized correctly/ can't handle mud/ etc)

Under Strict Liability here in the States, you'd have to prove the design, mfg., parts, workmanship, etc. were defective. That takes an expensive expert or two.

There is no case for negligence I see here as long as the Home Inspector exercised his due diligence in testing the function of the pump and returned it to its normal state. Now, if he accidentally forgot to plug it back in, well....

If it was less than 10 yrs old, you might have recourse under a Construction Defect law depending upon your state. Also, each state has varying laws regarding warranties, latent & hidden defects, real estate law, etc.

My question to you is: How was it proven the sump pump failed? Can you prove it wasn't damaged during moving? Did someone overload a breaker causing it to trip? Did they know this basement has enough water to float it away should that pump fail? If you knew this basement was prone to that kind of water, why wasn't it provided with an external backup float alarm and a backup emergency pump?

As for the impending battle, I could see the buyer's homeowner's insurance paying out of pocket to effect repairs then subrogating to whomever installed the pump, the wholesaler, and the mfr. hoping to get 40 cents on the dollar.

If it was me as the HI, I'd insist on having my own expert present to inspect the pump along with the plaintiff to perform a Root Cause Analysis and ask the 5 Why's. If they destroyed the pump or removed it from its orginal location, that would constitute a spoliation of evidence and get the defendant off the hook.

------------------

[This message has been edited by Bob Harper (edited January 25, 2006).]

[This message has been edited by Bob Harper (edited January 25, 2006).]

Bob Knauff
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posted January 25, 2006 02:40 PM            

Right on Bob Harper!! I believe you should bill Mr. Glazer $100/hr. for that one!

We HI's get that "why did it fail?" question all the time and typically followed by, "After all, it was just inspected!"

Generally speaking I draw on the analogy of one's automobile. It was just parked in the lot of the super market when you drove there and it ran fine, right? Come out of the market and it flat refuses to start. How come? Because that's the way machines are. They run fine one minute and the next, nothing. I've yet to have anyone NOT understand this, as much as they may dislike it!

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Bob

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Richard Stanley
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posted January 26, 2006 06:52 AM            

Having improvements, valuable personal property, etc. in a basement that floods with only a sump pump for protection is like living in New Orleans - something is going to get wet.

Mike Glazer
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posted January 26, 2006 09:51 AM         

Hi all!

Luckily, the burden of proof typically lies with the manufacturer to disprove the claim. This is with respect to our Consumer Protection Laws.

The purchaser bought it for personal use from The Home Depot, therefore, our Consumer Protection Laws should cover the transaction.

It will be tough, though. She said the switch did not activate the unit. Not even by hand. And then, once they got it started, they couldn't stop it. I am not sure how the switches work (what type of contact, etc.), so I haven't delved into too many details.

As for insurance, you WON'T believe this. Her insurance was cancelled the morning she took possession, because the house had an "Acquired Right" attached to it. The new insurance took effect the day AFTER!

I know it sounds bizarre. I am not quite believing it myself, but that's what she told me. We are doing all this via e-mail and she speaks French, so maybe I am not fully understanding it... but looks like one big negatory on insurance!

At Civil Law, liability is determined by one overall equation. You must prove DAMAGES, a FAULT, and CAUSATION between them.

Therefore, although the "Sue 'em all and let God sort 'em out" mentality might seem a bit harsh, the bottom line is that in a case like this, of all the parties involved, she should be the last one to hold the bill.

A house was inspected and paid for. Included in the price were a working sump pump and other fixtures and systems.

The day she moves in, the unit's switch doesn't turn on the motor, resulting in $8,000 damages.

She didn't build the unit.
She didn't import the unit.
She didn't sell the unit.
She didn't buy it from the Home Depot.
She didn't install it.
It was sold to her in working order as part of the house from the seller.

Day #1 - It doesn't work.

She DID have it inspected, and it DID seem to work at that time.

At Civil Law, Common Law, Consumer Law, or just morally, whether the fault was hidden, missed, avoided. Or whether there was an installation problem or Home Depot sold shoddy merchandise... regardless...

I think she deserves her day in Court.

Someone messed up here.

Remember, it happened on night one, during the first rain storm. Unbeknownst to her, she bought a defective unit and had a flood.

I'll keep you all posted!

Jeff G. Hooper
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posted January 26, 2006 02:21 PM            

quote:

---

"Okay, so the pump was under warranty and repaired."

---

Associated damages. Fitness of Merchantability.

As far as the insurance issue, you may want to look into the sellers insurance as coverage does not always terminate on the sales date. Around here, and it has been a while since I operated in Canada, it is still covered for a short period of time so that the two policies overlap for protection of both parties. Worth a look.

If you have Fitness of Merchantability laws you may have a cause for recovery against the seller under these laws as they do not always solely apply to merchants in the sense of the definition. A good argument could, or may, be brought that the seller in this case is the merchant.

You stated the pump was under warranty, why was it replaced initially, unless this is a new house. What was the cause of the failure? A little forensic work may give you your case and legal arguments that there was a known defect that should have been disclosed.

Good luck, sounds like you are on the right path.

Bob Harper
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posted January 27, 2006 04:15 PM            

I just love this burden of proof in Canada--you are guilty by assumption until proven innocent just because some person without any technical expertise or specific knowledge in such matters decides a certain product is at fault. Before there is any investigation or forensic analysis. Just blame the mfr. because we all know they have deep pockets. Mike, I hope you can appreciate my absolute loathing of this attitude. Thsi is the very kind of crap that is ruining the economy and gets derrogatory terms hurled at lawyers. Under the guise of your concern for this homeowner's well being, you are looking to make a buck and you know the mfr. of a product is the best target. It doesn't have done damn thing to do with fault because you don't know ANYTHING at this point! Has there been a Failure Mode Analysis done? No! What about the wiring? Is this on a plug as most are around here or hardwired? You see, the breaker, outlet, cable, switch or other materials could have been at fault. Hell, a rat could have chewed the wires for all you know. When moving their belongings into the new house, how do you know they didn't drop something onto the cord damaging it or pulling it loose? Maybe she accidentally dumped some laundry detergent or brake fluid in the drain which ruined the pump. You don't know.

I am not an atttorney but I work with mfrs attorneys handling products liability cases daily. I know in the States we have comparative negligence, which means the finder of fact can assign partial responsibility to several parties including the homeowner. Also, the Burden of Proof in the US is on the plaintiff to prove each and every essential element of their claim by a preponderance of the credible evidence. If the evidence fails to establish any one of the essential elements of the claim, then the defendant prevails. Therefore, in negligence cases, you must prove all 4: Duty to Act, Damages, Act or Omission, and the Act or Omission was the proximate cause of the damages.

In our pump case, the mfr has a duty to design and build a product that is reasonably free from those reasonably forseeable problems--not every tidbit ever thought up my man. He must exercise due diligence in the materials chosen, mfg., testing, packaging and distribution of this product. The Mfr. does Not have a duty to inspect the home for all reasonablt forseeable problems that could adversely affect their product or safeguard against stupid people--only what a reasonably prudent person would do under similar circumstances. the Home Inspector, being a Reasonably Prudent Person, would not be expected to dissasemble the pump or send it to a test lab. Just test its operation and leave it in the same condition or better.
Where was the Act or Omission by the H.I. or mfr???

You don't know there is one because you don't have facts. Instead of digging into their own pockets to find the defect then knowing who to go after and recoup, you decided to dip into the mfrs. pockets without any real evidence the fault is theirs. Just pure conjecture. It is this conjecture that is ruining our economy.

As for her insurance debacle, in the US, you couldn't get clear title if there was a glitch in the insurance coverage.

Why would she try to turn the pump off once she got it going? I thought she had a flood? Sounds to me like she noticed it flooding, tampered with the pump, then blamed it on the mfr.

Did she call the Fire Dept or a plumber to at least mitigate the problem? Around here, Fire Depts routinely pump out basements after floods.

What was damaged? Did she put valuables or unprotected possessions in the basement?

You are assuming who all the parties are without anything to base it on. Hell, lets get the builder, developer, Township Inspector, landscaping contractor, surveyor, foundation contractor, plumber and electrician in on this case, too. If it costs each defendant a minimum of $5K to defend themselves, you could pay for the house with what you could cost a bunch of innocent people. What about THEIR rights? Hell, frivolous lawsuits have just about killed the liability insurance business. Many good contractors cannot even find insurance at any price and its because of cases just like this that are killing it. If the contractor who installed this pump turns it in to his insurance carrier, he'll probably be dropped from coverage or at least see his premiums double. Therefore, in order to stay in business, he pays out of pocket for something that may not be his fault. While you're off "protecting" the rights of this dubious homeowner, you manage to screw a lot of innocent people. Think about it. Now, do you understand why people hate lawyers?

I think you need to do a little homework on this case before you jump. As with most attorneys, you state way too many assumptions, which anybody in their right mind would not agree to stipulate. Your case is full of holes. Nothing personal Mike-- I just love busting attorneys. Have a nice day,

------------------

Mike Glazer
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posted January 27, 2006 04:34 PM         

Wow, does every forum in the world have someone like this?

Two quick comments:

1. Consumer Protection Laws are there to protect the lowly consumer from big corporations. The laws do make sense. Nothing wrong with reversing the burden onto a company to disprove fault. I'm a true capitalist at heart, but as a consumer too, I do appreciate what the law does for us. And these laws vary province by province, state-by-state. It's not a "Canada" thing. There is no country in the world more litigious than the USA.

I respect the CPA. If machine X causes damage Y, well, hey, why not have the company prove that their machine was not at fault, rather than have Joe Taxpayer hire forensic scientists and experts. Most companies can sure afford experts more readily as compared to the average Joe that earns $45,000/year, no?

Res Ipsa Loquitor, as I believe they say in Common Law jurisdictions.

But that's a wonderful debate for another thread.

2. "you are looking to make a buck"

I think I said twice that she is a friend of mine and I am helping her for free.

I'm a very busy person, have little time for this type of stuff, yet I am the only lawyer she knows.

That is why I keep visiting this thread asking for help. I also spoke to two real estate buddies as well.

And you know what... I'll tell you one more thing... Truth be told, she is not even a friend of mine. She is someone who works part time as a scheduler for one of my companies.

I'm sure you had some great points in your post, yet I pretty much missed 90% of your post, following your introduction of, "you are looking to make a buck."

If you go back and edit that out, and while you are in edit mode, tone some of the rhetoric, perhaps I'll read further without that sinking feeling and eye rolling that started to happen after the 'make a buck' accusation. (Sorry -- I think it's just an autonomic nervous system thing... no offence.) I bet there is some useful information in there.

Thanks for taking the time to write, though.

Shane Pouch
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posted January 27, 2006 06:13 PM         

Right on Bob!

"Sue 'em all, and see what happens." What a bunch of crap! How about this: if you fee so compelled that you must sue someone, just sue the entity that deserves it (that's assuming one actually exists).

This whole "sue 'em all..." philosophy is such a cop out, and it's what is ruining our society.

------------------
Shane in KC
"Deal Killer"? Nope...just an ASP (assisted suicide provider)!

Mike Glazer
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posted January 27, 2006 06:33 PM         

"Sue 'em all and let God sort 'em out!"

That sounds even better!

It's actually a little more complex than that, but in essence, that's the idea.

There are so many problems with the legal system today, no doubt about that. Lawyers will be the first to tell you that.

I must say, though, the rules here in Quebec are way more civilized than other provinces and states. I could go into the differences and so forth (our law is codified, for one thing) Plus, here, lawyers are not even allowed to advertise. I laugh to myself when I see those ads on US border stations. "If you've been hurt in a car accident... Call me!"

But regarding the "sue 'em all", it sounds harsh, but what would you do?

Imagine you buy a car on Monday, the guy drops if off that night, and lo and behold, it leaks gasoline and oil allll over your garage, and it catches fire, and causes $10K of damage to the garage.

What do you do?

To whom do you send the registered Demand Letter?

To the used car lot from whom you bought the car?

To the manufacturer (It's only 1 year old)?

To the last owner who sold it to the used car lot?

Well, again, everyone gets the letter, and it's up for a judge (who knows a lot more than any of us) to apportion the liability.

Of course, "Sue 'em all!" sounds bad, but truthfully, that's what you have to do.

The poor girl -- first time home owner, full time student -- moved in Monday afternoon and that night, having said to her boyfriend, "Hey, I'd like to check out the furnace room and spare bedroom before bed!"

...walked in to find the place covered in water.

She was living there for SIX hours!

She swore to me she didn't walk into that room before that time.

So?

At law, there are people who should pay up.

You have no choice but to send out a letter to all potential defendants.

It's not as bad as it sounds.

There are TONS of things wrong with the Law. TONS! Heck, that's why I enjoy lurking here reading about cool things like homes and home improvement, rather than with fellow lawyers(!)

..."Sue 'em all and let God sort 'em out!" really only means, "Well, this is not clear cut. If we are going before a judge, the people who sold us this house, the store that sold this sump pump, and the company that built the pump should also be there. Let's let the honorable judge listen to the facts and decide who should reimburse what portion of the $8,000 in damages!"

I just came here to hear if you guys know any "case on point" with this type of thing...

Thanks!

Mike

Shane Pouch
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posted January 27, 2006 06:51 PM         

Well heck, let's get the quarry that provided the crushed rock under basement slab in on this thing, too! Maybe it was their product that jammed the float switch!

You wanted "case on point", but you have to expect thread drift - especially with a topic so near and dear our collective hearts. We face daily, people who simply want to find someone to pin their troubles on.

I've always wondered how many times lawyers tell their prospective client that they should simply let it go, it's just tough luck, etc.? NEVER, because there is always "a buck to be made". And you can't convince me otherwise, because why else would there be 87 pages in my local yellow pages devoted to attorneys!

Come on, Mike!

Mike Glazer
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posted January 28, 2006 12:09 AM         

(First of all, the thread drift is cool. No problems there... I'm enjoying it...

It's just not cool to tell me my motives here are because I am out for the buck. Regardless if I was a lawyer, doctor, or accountant... it's just not a cool thing to read.

I truly have so much work to do that the last thing I want to do is be here and debate sump pumps for my friend.

I love reading threads here because I enjoy reading about home design, construction, and renovations. It's fascinating.

So when someone tells me I am involved to make a buck... c'mon...

But as for the rest of the thread... I think it's awesome... A few things about US vs. Canadian Law... Parts of the system that may have failed the pump.... You name it.. it's cool to delve off topic.

There is a great point brought up about telling a client to just forget it and absorb the loss.

You can't do that, unless the person is really the one at fault.

For a case that isn't worth a lot of money, there are plenty of lawyers that would WANT to say, "awww.. forget it".. But people want their day in court, and very often deserve it.

I am sure some lawyers may abuse their profession, as do many doctors, computer technicians, mechanics, or otherwise.

I am very interested in this type of law, even though I don't practise in it much.

I have a customer service consulting company. I hear stories about people being screwed, ripped off, or otherwise disappointed or being shafted or taken advantage of.

I see people trying to return defective walkie-talkies after 31 days; I have seen people been refused because they don't have receipts; I've seen people argue about incorrect price tickets; and so forth.

The propensity for someone to want justice (for himself or others) has nothing to with being a lawyer.

I WISH my friend would call me and say, "Guess what! I am insured!!" Phew! Do I really feel like going to trial over this? Oh God, no.

But I feel that if I told her to swallow it, and not worry about the $8,000 (Isn't that about $11,000, pretax)?? Hmmm.. what do you guys charge per inspection? Is it that quick and easy to earn $11,00?

That's a lot of crawling in attics and driving to work for $11,000. Having to pay that for a flood because of a defective machine that occurs a few HOURS after you would take possession would hurt! Imagine your lawyer said, "forget it..!"

So that's why I have to help her, and I have to recommend the parties of all those who might hold some accountability/responsibility for her flooded basement.

Sending registered letters to only one party is just laziness.

I've had similar debates about defence attorneys. I hear the other side all the time, "But his client RAPED a woman!"

"Yeah," I say, "but the cops beat the confession out of him and walked into his home without authorization."

One day that could happen to any of us. Defence lawyers keep the system as 'honest' as can be.

Every time a murderer is set free because the only evidence the cops have was obtained by illegal means... well... someone's gotta keep getting that evidence rejected.

It's a good thread, though. Certainly not what I expected.

I was simply hoping to come here, and in a few posts read, "This happens a lot. I've seen pumps die within the week or month all the time. It's always the ________'s responsibility. Even 5 minutes after midnight, the _________ is always liable in these types of flooding cases..."

That would've been so sweet!

So... imagine my surprise to see where this has been going!

Thanks!

Russel Ray
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posted January 28, 2006 03:13 AM            

But, truthfully, aren't we all out to "make a buck?" Isn't that how we pay our bills, put food on the table, clothes on our backs, and a roof over our heads? I don't like American Idol, but I don't fault them for trying to make their buck, regardless of how idiotic some of them look. Hey, bucks and 15 minutes of fame. Who am I to argue? And no I don't watch it. Unfortunately, others here do, so sometimes when I walk through the living room, it's on. And my eyes and ears still do work, even at my age.

Shane Pouch
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posted January 28, 2006 05:56 AM         

Russell, you are correct. But, we can always debate how it is that a person makes their buck. I believe some are simply made more honorably than others.

The lady in the original post of this thread may very well be due compensation for her damages. I don't know. I just disagree with the idea of pulling the shotgun trigger and seeing who falls out of the sky. And, I don't believe that everyone always deserves his or her day in court - that's the problem!

If the sump pump failed, go after the manufacturer, and them alone. Don't go after the seller. Don't go after the installer. Don't go after the builder. Don't go after the supply house. And, for God's sake, don't go after the company who supplied the petroleum from which the rubber on the pump's cord came!

I think my argument is simple, really.

Bob Harper
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posted January 28, 2006 06:29 AM            

Sorry Mike, I didn't see where you mentioned this being pro bono.

That being said, everything else I said still stands--sorry, no editing. I ask that you go back and re-read my retort. It is the very essence of why the public is so quick to jump on lawyers. You still have a rather cavalier attitude about this. You try to equate this case to a car with problems, perhaps because you feel that is easier to picture. However, again, your example is of a product made by a big mfr.

Let's look at your example: what was the Cause and Orgin of the fire? Gas hose or oil line came loose? How did they get loose? Ran over something on the way over or in the garage?Was it leaking when they delivered it?--The homeowner came out and tool possession of the car. Why didn't they spot the gas leak then? Once they've taken possession is the car company still liable? Up to when?

I'm not saying the pump mfr is not at fault. I'm just saying prove it. If it can be readily proven it was their fault and not some outside source beyond their control, I'm sure they'll step up to the plate and pay up. However, if the pump failed because someone swept trash into the sump pit a long time ago and the action by the home owner of pulling the pump and fiddling with it stirred up the mud so to speak, it was the homeowner's lack of maintenace that caused an otherwise normally operation appliance to fail.

Normally, the homeowner's insurance company would effect the repairs then subrogate to whomever they feel is at fault. When they contact the pump mfr, they'll put the burden back on the insurance company to show why the mfr is at fault. If it is clear cut, the mfrs pays--usually less than full price. I'm sorry this person was uninsured but that's the risk of running bare. If her insurance agent mislead her, there might be recourse there.

As for telling the homeowner they are the ones at fault, we don't know in this case be keep an open mind--it is a possibility. You came out guns blazing with the pump mfr. guilty before considering any other possibility. I find that lazy and irresponsible, so now you know why I'm a little irratated by this dialogue Mike. I don't want to personalize this so I'm trying to keep it that when lawyers( as in ALL lawyers) approach a case in similar fashion, I think it is wrong and costing the country dearly. Maybe its because I've had to deal with so much frivolous litigation that I'm sick of it. You want an example? Homeowner notices black material all over their house. Whether on their own or from someone else, they get the idea it must be the fireplace. Ok, the insurance company hires one of those cleaning companies who charge exhorbitant rates and submit a bill for $15-50K. When the insurance company subrogates to the Fp company, no proof. We say prove it. They hire a lab who is not experienced in Black Particulate Matter cases. They take samples and their analysis determines there is carbon and sulfur present so it must be the Fp! We have to sample including microscopy and gas chromatography with mass spectrometry to identify exactly what the material is and if it could have come from the Fp. In over 90%of the cases it is candle wax. Other sources include aerosolized cooking oils, mold, dirt, diesel car exhaust, oil heat blowback, and even the metal filings from door hinges.

So, you see, there are a lot of things that could cause problems other than those readily apparent to laymen. That's why I'm cautioning to please not jump to conclusions. Again, I apologize if I offended you about the money thing but then again, you see what happened
when I assumed???? You didn't like it, did you? I rest my case counselor.

Have a good one!

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Bruce Breedlove
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posted January 31, 2006 07:37 PM            

Interesting thread. Several thoughts come to mind:

1) Not all lawyers are bad. It's the 99% that make the other 1% look bad.

2) The shotgun approach ("Sue 'em all.") is very cavalier. A bit of effort by the plaintiff or plaintiff's attorney may uncover the root of the problem saving innocent parties from the time and expense of proving themselves innocent.

3) $@&% happens. Welcome to the wonderful world of home ownership. Every mechanical device will fail eventually. Sometimes the timing of the failure is unfortunate. That sump pump switch was bound to fail at some point. Unfortunately, hours after the sale a storm hit and the switch failed. What if the storm had happened a week later; would the burden then shift to the homeowner? Two weeks? A year? How long is long enough before it is not someone else's fault?

Is there an implication the home inspector is somehow at fault for not foreseeing the failure? I test sump pumps by adding water until the float triggers the pump and then I ensure the pump pumps out the water and the float switch kills the pump. I.e., I make sure the system is working properly at the time of the inspection. That in no way implies it will work the next time.

Yesterday I turned on my bathroom light and it worked fine. When I turned it on this morning the bulb was burned out. Who do I sue?

Jerry Peck
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posted January 31, 2006 07:43 PM            

"Yesterday I turned on my bathroom light and it worked fine. When I turned it on this morning the bulb was burned out. Who do I sue?"

"2) The shotgun approach ("Sue 'em all.")"

You've answered your own question.

Was it a GE lamp? They have deep pockets, make sure to include the deep pockets.

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Jerry Peck
South Florida

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matt fletcher
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posted March 06, 2006 10:00 AM            

i did an inspection where i knew the sump pump had to be working (or very recently died) because the basemement was not flooded. however, i could not get it to kick on...and it was the orignal pump and was 20 years old. i wrote "i suggest replacing the pump" in my report because the buyer planned to finish the basement.

it says in my inspection contract (paraphrasing) "this is not a warranty"

"this is not a gurantee that any part of the house or mechanical systems will break down at any time in the future"

"i can only attest to the items listed as working or not AT THE TIME OF INSPECTION"

so far, i have been accused of breaking a GFCI plug and an a/c unit just so i could write it in my report and "be a hero."

Bruce Mayfield
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posted March 07, 2006 10:21 AM            

Where did the water come from to start with? Let’s say the pump turned on and was not able to move enough water out, it became hot and went into thermal shut down. In the mean time the basement flooded. When the pump cooled enough it began working but by then it was too late. Is it the pumps fault that the basement flooded? As I understand it the sump pump is the last line of defense. What system failed prior to the water entering the basement? If I understand correctly it was raining out side.If rain water was the cause of the flooding, then there is a lot more going on than the poor little pump.

Bruce Mayfield
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posted March 07, 2006 10:22 AM            

Where did the water come from to start with? Let’s say the pump turned on and was not able to move enough water out, it became hot and went into thermal shut down. In the mean time the basement flooded. When the pump cooled enough it began working but by then it was too late. Is it the pumps fault that the basement flooded? As I understand it the sump pump is the last line of defense. What system failed prior to the water entering the basement? If I understand correctly it was raining out side.If rain water was the cause of the flooding, then there is a lot more going on than the poor little pump.

Ross Ashbaugh
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posted March 07, 2006 11:42 AM            

I always recommend a backup pump and battery system be considered, especially in finished basements. If there's a power outage, the battery kicks in and powers the pump (time depends on battery strength/model), and if the main pump fails the backup pump kicks in.

It's a way to buy time until the system power and/or pump are restored. Also a good CYA item.

------------------
Be Careful Out There!

Ross Ashbaugh
www.HomeTeamDayton.com

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Shane Pouch
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posted March 07, 2006 11:58 AM         

Ross,

I, too, always recommend a backup system - especially for finished, or about to be finished basements.

However, I recommend a water-assisted pump. Click here to see a good example. (FYI - There are a couple of pdf file links at the bottom of the page.)

The great thing with this system over battery backup systems, is that all by itself it accounts for power loss AND primary pump failure. No need for another electric pump, or batteries that can fail themselves!

Just a thought...check it out.

Ross Ashbaugh
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posted March 07, 2006 06:41 PM            

Shane, looks pretty slick, thanks for the link.

Apparently sets up a siphon action through a venturi tube or similar? Anyone seen it in action?

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Ross Ashbaugh
www.HomeTeamDayton.com

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