[totes]

"YOU TOUCH IT, YOU OWN IT"

In short, my question is: Do you guys use a waiver form of some kind?
As a sub would I get a signature from the HO or GC? Any input or food for thought would be great.

(long winded version)
For the most part I abide by that saying. ^ However, I do Sub work for a builder, remodel stuff. Sometimes I find my self in the predicament of replacing a rotten post on a "tear-down" deck....finishing tile on hardi I did not lay....stuff like that. I hate pick up work but I do it as part of\or to get the big jobs as well.
I communicate with the homeowners about the situation. (for example) "all I did was make sure that post is doing its job, I did not stabilize the deck in any way. It needs replaced IMO." Obviously this convo means nothing legally.
I worry what could happen to me legally if a deck collapsed, tiles break, ect.

I am see my attorney friend soon, but I would like to hear from fellow contractors first.
Thank you for your time.

 

[rrk]

In 28 or so years on my own I have never had a "you touch it you own it" moment. If you can explain the work process, show them what is going on, and communicate everything with them you will be fine.

I have taken over/finished many jobs started by others without problems. Just communicate.

 

[Metro M & L]

Anyone can sue anyone for anything. Good communication and picking the right clients is key. I often wonder about the efficacy of waivers, but its some protection I suppose. A waiver will not protect you if you are negligent however. So it comes down to judge or jury.

I remember one client who said his roofer had a damage clause in his contract that specified he was not liable for damages caused during the roofing process. Caused 100k worth of damage to masonry and some statues in a crane accident. Long story, the roofers contract was upheld and he paid for none of the damage.

 

[hdavis]

The GC owns it if that's what he told you to do.

 

[Astrix]

The general principle in liability law is: have you done what a reasonable person would or would not have done in the same situation? That said, as a professional who is being paid for your knowledge and expertise, there is a higher onus of responsibility especially if it involves the possibility of bodily injury or property damage.

As a professional contractor if you recognize an unsafe condition or faulty construction that the average homeowner may not recognize, you have the responsibility to bring it to their attention, even if it is not in the scope of the work you were hired to do. Medical doctors are expected to stop and help car accident victims even if they are "off the clock" and just happen to be driving past the accident scene.

So. if you are tearing down a deck and find a rotten post, the expectation will be for you to do something about it. Would another deck builder replace that post or at minimum bring it to the homeowner's attention? If most would say yes, then the courts will expect you to do the same.

Re the roofer who was deemed not negligent for a crane incident that caused property damage; I think there may be more to the story. Unreasonable waivers are often deemed unenforceable whether or not they were signed. I'm thinking what may have happened is that the roofer required the homeowner to prep the site and protect or remove any breakable items such as statues. A specific waiver was requested because the contractor wasn't confident in the way the jobsite was laid out and explained the risks of damage to the homeowner who was willing to accept the risk despite the contractor's warnings and then signed a specific waiver to that effect. The crane shows up to deliver the shingles and the homeowner allowed them on his property but hasn't prepped the area as he should have done. The accident happens just as the contractor predicted might occur, but yet the homeowner had willingly accepted the risk despite the contractor's earlier warnings. I'm just presenting a possible scenario as it wasn't stated exactly what the "crane incident" was other than it caused damage to masonry and statues.

In general, the courts tend to side with the homeowners: 1. because they tend to side with the one who did not write the contract (and usually the contractor supplies the contract); and 2. the contractor is deemed to be the professional and is being paid for his services so there is a greater onus upon the contractor than the homeowner. The same goes with insurance policies; the courts tend to side with the policyholder instead of the insurance company because 1. the insurance company wrote the policy; and 2. the insurer is deemed to be the professional; so anything that is remotely vague will be ruled in the favour of the policyholder.

Any waivers that you would add to your contract need to be very clear and concise, and should be signed separately in addition to just signing the last page of the contract. Otherwise they won't hold water if it gets to court.

 

[mikeswoods]

I seldom have problems ---One thing I do is write a note on the invoice stating items that need attention now or in the near future---

Just like auto mechanics do----

I figure if a judge sees that note on the invoice,he will realize that the homeowner was made aware of an issue and had an opportunity to get it fixed---

 

[huggytree]

ive broken $600 sinks trying to get an old faucet off...broke faucets, etc

if i dont warn the homeowner about the situation before i start i eat it...the $600 sink one is recent and is painful!.....its always an odd situation w/ poor quality plumbing parts/fixtures...its typically not really my fault and was due to happen to whoever tried the plumbing repairs.....i just figure oh well and fix it for free...happens 1x-2x a year and is part of doing business......if your dealing with a $10,000 deck you better make sure you mention everything ahead of time to the homeowner....cover your ass before touching/doing anything...that way if someone falls apart while doing your job the homeowner wont blame you

homeowners never blame themselves...human nature is always to blame someone else

 

[jaydee]

If for example your talking about a deck, damaged, rotted or
not to code. You need to replace a railing post, As an extra or change order.

I would write a change order with the scope of work and a description
of the deck condition..

Have two or three prices.

post replacement = $_____
deck repair to code =$_____ (if possible)
total deck demo & rebuild= $_________

which ever one they choose is written above the signature with the check # paid in FULL.

Should cover your AZZ