Who Is At Fault, Liability Wise?

Ed the Roofer

From another thread, this discussion came up. Is this more of a moral decision to choose to pay for the repairs out of pocket or is it proper business ethically, to hold the home owner at least partially if not fully to blame?

Here is the assumed scenario.

Whos fault or liability is it, if when one of your workers is walking across the roof before the tear off starts and their foot and leg break through the shingles and decking and puts a hole in the drywall ceiling below, not assuming any injury to the worker.

Remember, he is not doing anything irresponsible and not carrying any excess weight such as a bundle of shingles, just walking up the slope of the roof to the ridge to get started.

Is this contractor negligence? Should the contractor and their general liability insurance pay for the repairs? Was it contractor negligence for not knowing about the hidden condition?

Or, is this neglected condition caused and perpetuated by the homeowners lack of taking timely maintenance and repairs?

How do you guys feel about this scenario?

Oh, and lets presume, for the sake of argument, that you have a $ 1,000.00 deductible and the total cost of damages is $ 1,500.00 for drywall repair, mudding, taping, and repainting the whole ceiling, as the example.

Ed

Tom M

Tough one Ed I would lean toward the Home owners liability for this. Whos at fault if you slip on an icy sidwalk? You new it was icy and that did not stop you from walking on it. The owner intended to fix it or clean it but didnt get to it yet. The property insurance would cover it.

HUDSONVALLEYEXT

Homeowners fault but your guys did the damage. Take the loss and pay for it to be fixed. Finish the job get paid homeowner is happy and gives you good reference.

Or don't fix it homeowner fires you and you don't get the money for doing that job. Takes you to court.... Wastes your time in court when you could be out working making more money. Then they tell everyone in town not to hire you.

For the 1 in 1000 chance of this occuring I would just pay for it

john elliott

Interesting question. I think that morally the HO would be at least partly to blame, but the chance of getting anything out of them would be very, very small, not just because they would feel that your insurance would pay for it, but that it was your fault, totally, from start to finish

John

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Ed the Roofer said "John too, in his crass and blunt demeanor.............."

Ed the Roofer

Tom,

Different than the ice comparison because the roofer does not know there is decking that deteriorated when he walks on it.

Hudson,

Actually, stepping through rotted decking is much more common than 1/1000.
the guys foot just doesn't usually go that far through to affect the ceiling.



Is this an add a clause to the contract to cya type of situation, to at least split the costs or accept only a portion of the liability if any?

Ed

P.S. I'll share a good real experience story with everyone around the fireplace later tonight. Not the same scenario, but enough similarities.

thom

$1500 seems like a steep repair for drywall and paint.

Ed the Roofer

Thom,

It was just a hypothetical example. But lets make sure we are not being overcharged.

Where the foot crashed through the ceiling, is where the ceiling fan with lights were. This light fixture and the electrical repairs just so happened to cost the exact difference between the drywall repairs and painting costs.

I hope it actually doesn't go over $ 1,500.00 now, otherwise I'm going to have to put the squeeze to the painter or drywaller or the mudder/taper. Nah, lets just get it out of the painter, most of them (besides the guys here) won't even know the difference.

Ed

woodmagman

Ed...we as proffesionals and have to assume the resonsibity. After all the reson you were there is to fix the roof. I am sure we could beat a dead horse on senerios, the customer is not the expert. If the customer had hired you to fix a hump in the floor and your employee tripped on the hump and fell and killed the customers cat, who fault would that be? I KNOW YOU WANT TO SAY THE CAT!. Same thing, there are certain things you have to a assume when doing roof work and that is check out the entire roof deck and ensure it is safe. I still think the cat is a good answer. CS dictates

Driftwood

There should be enough money in the job to cover this. I would charge
for rot work repair also

ProWallGuy

says the GC. The painter thinks it might not be enough.

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Teetorbilt

You don't have a clause similar to this '(the Contractor) is not responsible for anything unseen.' in your contract?

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reveivl

If you're there to fix the roof, or reroof because the roof is old, it seems to me that it is reasonable to expect that there might be damage to the decking. I bet it's in your contract that any unseen damage to the decking will be repaired at such and such a rate. This presumes that you know and expect that there might be damage to the decking, so it's pretty hard to put it on the ho who has probably never stepped on the roof and wouldn't know even if he did.

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dirt diggler

"yeah but you're the one that put a hole through my ceiling"



and you want ME to pay for it?????








just playin devil's advocate ... as usual

bill r

I would say that the professional roofer should know that the deck may fail; and would want to repair the ceiling. This is very different from shelling out lots of cash for an interior renovation. Repairing the ceiling means restoring it to its approximate condition before the accident.

Grumpy

Was the damage there when you showed up? No? Did your worker put his foot through the ceiling? Yes? Then it is your fault and your liability.

Oops I slipped, well it wasn't my fault I broke your window. You put the glass in the way of my falling ladder.

Ed the Roofer

Okay, here is a real experience that happened last summer.

Think about the worst storm that came out of nowhere, super fast. They were only calling for a 40 % chance after midnight and the radar didn't show anything until one hour prior to arriving.

12/12 cape cod with 100 % cdx r & r, install 100 % rafter baffle vents, install 100 % eave Smart Vent, with 1/2 of the front decking torn off.

We immediately tack new cdx in place and felt everything real good and tarp it with wood 2" x 4"s to hold the edges in place. Storm hits just when we get covered up. No leaks. Its good all evening. Sometime in the middle of the night the wind ripped up one corner of one tarp right through the 2" x 4". Minor water damage on 2nd story ceiling, but a big bubble from water travelling through the wall to the 1st floor ceiling. Pop the paint bubble and place buskets to catch the water.

I immediately call in my repair drywall/insulation/painting company and say I need it done asap. $ 2,200.00 I am willing to pay out of pocket to correct it NOW. Husband wants advice from his HO insurance company. Therefor, now I have to initiate a claim with mine for subrogation. My liability company reviewed the dated before, during and after photos and weather radar maps I had printed and determined that I was not liable. They said we did everything expected from our perspective to eliminate and mitigate any foreseeable damages. They said the HO has to share in some of the risk factor by having this type of work done.

Now, HO has to have his insurance company cover the losses and I do not have a claim against us. The HO insurance companys subs charged about double of what my very experienced reputeable established contractor would have charged me, so now the HO have that claim on their CLUE report.

I felt bad for them, but the wife knew I did the more than ethical thing by attempting to resolve the issue before it became a bigger on.

Initially, in this situation, I had assumed that my company was the responsible party, but after the facts being reviewed, we had done our due diligence of what could have been reasonably expected from any other contractor in the same situation.

It is not as clear cut as we each may think.

What if the wind had only pulled up the tarp with a 2" x 4" attached and it beat up the siding on the dormers and/or broken the windows? Is that our liability, or is that an act of God, which we had no foreseeable control over?

Ed

woodmagman

The world is full of what ifs..................stick the cat in the hole and call it a day.

ultimatetouch

I dont think anyone should get uptight about this. Especially if your doing everything you could on the roof to prevent damage. There homeowners should take care of it. Its just like an unforseen problem in side a wall while remodeling.

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Grumpy

Legally and ethically are usually mutually exclusive. Meaning they usually are not the same thing.

What I mean is I feel the damage is solely your fault. BUT in that specific situation you did the right thing and tried to fix it. Why the home owner called his insurance is beyond me. What a fool. You were more than willing to fix it. That's what matters.

Ed so now that you have this information, regarding shared liability, if this problem ever arises again what will you do? Will you tell the customer it's not your fault because you tried or will you offer to fix it again?

Ed the Roofer

Grumpy, that question is actually two fold in my mind. I do not feel we were at fault, yet I do feel we were responsible for the damages.

Just because I had the good financial fortune of having my insurance companies claims adjuster see that we were not negligent does not mean by any means that the next one would see it the same way.

I would still immediately respond and offer to have the repairs done out of pocket if it wer such a small matter and put in a claim if it were a larger issue. I remain convicted to the promise of being responsible to my customer. This all assumes that there were no extenuating circumstances which the HO brought on by any of there actions or decisions or lack of decisions though.

Ed