Liability For Deck Repairs

 
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Old 05-19-2017, 01:57 PM   #1
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Liability For Deck Repairs


I've heard that if you do deck repairs you could be held accountable for the entire deck. That is, if you make a repair on the deck but it fails due to improper workmanship by the original builder that you could be held responsible.

Does anyone have experience with this? What do you do to protect yourself?
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Old 05-19-2017, 03:37 PM   #2
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Re: Liability For Deck Repairs


There are exceptions, but the last person to touch it is usually the one who has the most liability because if you're qualified to do any repairs after inspecting it prior to working on it, you're qualified to bring any issues to the HO's attention (i.e. - safety and/or code violations) and if they don't want them addressed for any reason, you are not compelled to work on it. If you choose to anyway, well...

Exclusionary terms in a contract that involve safety and/or code violations (cosmetic is a different story) don't usually fall to the favor of the contractor, so just be sure to give it a thorough inspection documenting any work that needs to be done, along with supporting pics and if they don't want to do it, don't do the job...

Safety/code compliance not only works to the customer benefit but can sometimes bring you more revenue not to mention more credibility as the pro...

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Last edited by KAP; 05-19-2017 at 04:01 PM.
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Old 05-20-2017, 12:58 AM   #3
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Re: Liability For Deck Repairs


The legal term is a "duty of care"

In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence.




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Old 05-21-2017, 05:46 PM   #4
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Re: Liability For Deck Repairs


funny this came up
I just saw a client on her salt water-front home.
she wants to strip the decks down to the stringers ( joists), and just replace the actually decking top.
also she wants to re-do all the railings over.
its all over 30 years old .
now I`m wondering ...

wants to do it without a permit too.
wants to say we are repairing
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Old 05-22-2017, 08:25 AM   #5
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Re: Liability For Deck Repairs


That's similar to the job I'm talking about. Though I won't know the age/condition of the deck until later today. And luckily we don't need to deal with salt water in the Detroit area!
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Old 05-22-2017, 09:12 AM   #6
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Re: Liability For Deck Repairs


Laws vary per geographical region.Check with someone local who knows. For me, if the deficiency is minor (no imminent safety concern) and your repair is unrelated, create a liability waiver, have them sign it and keep a copy on file. Always protect your own interests.
That being said, I always show homeowners the concern, the reason for the concern and the corrective action as well as the cost associated. If there are major safety concerns and they don't want to fix them, walk away. There are some pretty sketchy people out there looking for free stuff courtesy of YOUR insurance or personal bank account.
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Old 05-22-2017, 10:52 AM   #7
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Re: Liability For Deck Repairs


You can't sign away a safety issue. They can sign until they area blue in the face it doesn't relieve you of your safety obligation.

Also if your state is abiding by the IRC, once you take it out of code it needs a permit and brought back into the recent code.

They cent sign your legal obligation away either.

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Old 05-22-2017, 11:21 AM   #8
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Re: Liability For Deck Repairs


A while back I spoke to my attorney in regard to that. What he said, the contractor is only liable for the work he is hired to do and his standard of care only cover the items under the contract.

So here are a few examples when you negligent and when you're not.

If I called to replace a few sections of railing on top of the deck and I notice on my way up that one of stair stringers or the staircase needs replacement I can mention that to the homeowner or not. If a homeowner takes a dive off the stair because of that stronger, I will not be held liable, (of course, most of us will notify the homeowner, and I always add notes like that into my agreements that the HO was notified of the following repairs must be done for safety reasons). This way the HO is aware and what he does with it that is his business, because now if anything happens, he is negligent to do this repairs or hire someone.

Now if I'm called to replace a section of railing attached to a bad stringer or rotten set of stairs and if I do the work regardless if I notified the owner or not in writing or not about that stair/stringer needs replacement and I still go ahead with the repair, I will be fully liable for damages if a homeowner or the third party takes a dive off that stair if the stringer fails, because that becomes negligence on my part.
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Old 05-22-2017, 09:36 PM   #9
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Re: Liability For Deck Repairs


The problem with that isn't who's liable, it's the lawsuit regardless of who wins. Just because you don't have to pay a judgement doesn't mean the suit was free. Unless it's viewed as frivolous the judge more than likely won't make the loser pay.

If your insurance decides to pay out instead of fight it, they will still consider it a loss due to a payout. There goes your rates.



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Old 05-22-2017, 10:00 PM   #10
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Re: Liability For Deck Repairs


Another lawyer planting seeds for future business...
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Old 05-23-2017, 05:39 AM   #11
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Re: Liability For Deck Repairs


So someone like me that repairs homes for a living is always on the hook?

Funny, never been party to a lawsuit and my insurance has never paid out.
I guess according to you guys I am just lucky, right?
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Old 05-23-2017, 06:37 AM   #12
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Re: Liability For Deck Repairs


Quote:
Originally Posted by Framer53 View Post
So someone like me that repairs homes for a living is always on the hook?

Funny, never been party to a lawsuit and my insurance has never paid out.
I guess according to you guys I am just lucky, right?
Did you do repairs that you knew violated safety or code?

Take what might be considered a simple repair in most circumstances... going down the stairs that are above the garage, guy slips and slams into the wall busting up the sheetrock at the bottom of the stairs... they call someone to repair it... upon removal of the old sheetrock, mold is discovered on the corner section of the wall on the basement side.

Do you rip the rest of the corner out the see how pervasive it is? If customer says "Don't worry about it, go ahead and cover it up", would you even if you got the HO to sign off on it?

Not every repair scenario will necessarily work out to be putting yourself in the position of liability, and I'm sure we can think of opposite scenarios, but generally, if you know before hand there is an issue and you choose to go ahead and do something that violates code or safety, you're most likely opening yourself up to liability...

Wouldn't want to have to be in a position to defend in court... even lawyers carry malpractice/liability insurance...
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Old 05-23-2017, 06:41 AM   #13
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Re: Liability For Deck Repairs


The fact remains that if you knowingly cover up a problem, you may have concern, but in ordinary circumstances like repairing a deck, go for it.

I personally like hidden damage as it means increased revenue for me.
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Old 05-23-2017, 07:10 AM   #14
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Re: Liability For Deck Repairs


When I do a simple repair I always check the entire deck out, then give the homeowner my suggestions. If they choose not to make more repairs I have everything in writing. Getting their refusal in writing, in most cases, releases you from that liability. You can even go one step further and video the conversation. With a video there is no possibility they can claim anything was altered. Bottom line is do everything possible to CYA or cover your a@@.
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Old 05-23-2017, 08:03 AM   #15
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Re: Liability For Deck Repairs


Hold on a second I need to get out my phone to video our conversation. I bet that line goes over well with folks.
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Old 05-23-2017, 08:40 AM   #16
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Re: Liability For Deck Repairs


I don't do repairs, period. The only reason someone wants to repair instead of rebuild is "A" they are selling or "B" they have no money or don't want to spend it.

Not the customer I want anyway.

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Old 05-23-2017, 08:43 AM   #17
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Re: Liability For Deck Repairs


I've yet to demo a deck where rot was only on a board or two. The devil is in the joints you can't see.

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Old 05-23-2017, 08:48 AM   #18
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Re: Liability For Deck Repairs


Quote:
Originally Posted by Californiadecks View Post
The problem with that isn't who's liable, it's the lawsuit regardless of who wins. Just because you don't have to pay a judgement doesn't mean the suit was free. Unless it's viewed as frivolous the judge more than likely won't make the loser pay.

If your insurance decides to pay out instead of fight it, they will still consider it a loss due to a payout. There goes your rates.



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That's similar to what my lawyer said. I went to look at the deck and it looked pretty old. This is a second level deck and the base of the posts were wet and pretty spongy. I mentioned that to the homeowner and he didn't seem interested in replacing the posts. I'll let him know today that I'm concerned about the safety of the deck an I won't work on it unless he wants to replace the posts.
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Old 05-23-2017, 03:28 PM   #19
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Re: Liability For Deck Repairs


Quote:
Originally Posted by Californiadecks View Post
I don't do repairs, period. The only reason someone wants to repair instead of rebuild is "A" they are selling or "B" they have no money or don't want to spend it.

Not the customer I want anyway.

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How many times have we seen that scenario? Prolly too many times to count.

I always advertised doing repairs because most of the other deck builders here did not. That got me in the door with folks that more than likely needed a new deck not a repaired one. From there it was my job to let them know that deck frame already 25 years old wasn't a good fit for new composite or hardwood decking. My line I liked to use, not a good idea to put lifetime type decking onto a frame with only a few years of life left. People with sense could see the logic, penny pinchers would fuss. From there you know whether to spend more time with them or not.
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Old 05-23-2017, 04:15 PM   #20
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Re: Liability For Deck Repairs


I turned down plenty of work because adjacent systems were dangerous and the HO wouldn't have them repaired. Take good photos of EVERYTHING.

You can be sued for damn near anything, and it's going to be expensive.

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