MyFloridaCode.com

Ken, I am not an attorney so I cannot answer your question with any
degree of legal certainty.  I have however, been involved with several
cases that involved a similar situation; one case involved a nail such
as yours causing a small puddle leak which an elderly lady slipped and
fell on going to the bathroom late at night.  Her injuries were critical
and extensive.  Another case involved a nail such as yours penetrating
the electrical conductor setting up a small fault current in the circuit
which ultimately led to the electrocution of a plumber underneath the
house some four years after the completion of the work.

 

In each case the jury allocated and assigned the fault to each
contractor, factoring those contractors who might have been involved but
were not in the case (attorneys will refer to this as a Fabre defense
and it must applied carefully and correctly or attorneys fees may be
assessed).

 

But, had you been sued by the owner, obviously there would be two issues
involved; one, had it not been for your nail, the leak would not have
happened and two, had the nail guard been properly placed your nail
would not have penetrated the pipe.  In my opinion the improper
placement of the nail guard would be an affirmative defense a suit and
might be grounds to dismiss a case against you by way of  a summary
judgment.  However, I believe the other side would produce a "expert"
that would testify that the nails should have been driven by hand
thereby alerting the carpenter that the nail had missed a stud and
entered a crack area or alternatively that a trained carpenter should
have heard a difference in the gun the impact and known that the nail
missed a stud and struck a pipe.

 

Sound unbelievable that an expert would testify to such as an absolute?
Trust me, attorneys can find experts to testify and swear to anything in
today's litigious society.  Remember experts cannot be sued for their
"opinion".  This has led to all extremes of lies and falsities sworn to
under oath.  I believe we need to change the law and hold experts
accountable for their testimony to their respective professional
licensing boards. Regardless of all of this, it has been my experience
that you would end up defending yourself or your company in front of a
jury.  How would they rule?

 

As I said, I am not an attorney, and it is situations like this whereby
contractor has need not only of an attorney - but a board certified
construction attorney.  It is a specialty subset of law in my opinion,
and most issues are not "black-or-white". 

 

 

 

R.J.Koning - Director

Contractors Institute

rjkoning at contractorsinstitute.com

8301 Joliet Street

Hudson, Fl 34667

727-863-5147

 

 

 

From: codetalk-bounces at myfloridacode.com
[mailto:codetalk-bounces at myfloridacode.com] On Behalf Of Bill LeMaster
Sent: Friday, September 18, 2009 11:31 AM
To: 'Ken Rodgers'; codetalk at myfloridacode.com
Subject: Re: [Florida Code Talk] Damage Responsibilities

 

Was the plate the proper size?

 

William T. LeMaster CBO/CEAP/MCP

Okaloosa County

From: codetalk-bounces at myfloridacode.com
[mailto:codetalk-bounces at myfloridacode.com] On Behalf Of Ken Rodgers
Sent: Thursday, September 17, 2009 6:45 PM
To: codetalk at myfloridacode.com
Subject: [Florida Code Talk] Damage Responsibilities

 

Evening All,

  I know this isn't really a code question but hope I can get some
feedback nonetheless.  This is in regards to responsibilities for
damages during construction & remodeling.  Normally, it's pretty cut and
dry and as such I take full responsibility to make repairs as needed for
any damages I may have done.  However, a recent minor incident just
raised the question and thought I'd get feedback from others.

 

  After a recent bathroom remodel job, the customer called to let me
know they had to call in a plumber to repair a leak in the hot water
line.  During installation of wainscoting over the existing sheetrock,
one of my guys had shot a finish nail into it and it didn't start
leaking until a few weeks later.  There was a protection plate but
unfortunately it did not completely cover the pipes and as luck would
have it my guys found the exposed spot.  So, the question is, since the
plate was not properly placed, how much responsibility should I or do I
bear?  In this particular instance it's not really a big deal and I will
most likely cover everything either way (certainly not worth getting
into a dispute over).  However, I just thought I'd bring this up as a
sort of case study to get feedback for this and future issues.  

 

Thanks,

 

Ken 

 

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