By: Luke Jerkins

In the legal world, we refer to cases that have never received an opinion from the Tennessee Supreme Court as a “matter of first impression”.  This means that the Tennessee Supreme Court will be interpreting a law or legal dilemma for the first time in its history.  This was the case when the Tennessee Supreme Court published their opinion related on November 21, 2017, related to Home Inspector negligence in the case of Charles Grogan v. Daniel Uggla, et. al. M2014-01961-SC-R11-CV.  This case was made all the more interesting considering that the five (5) Justice panel was split 3-2 in their opinion as to the negligence of a Home Inspector.

This matter stems from an accident that occurred when Charles Grogan leaned against a deck railing on the property of Daniel Uggla.  The deck railing gave way and Mr. Grogan suffered severe injuries as a result.  It was later determined that the railing had been installed using interior finishing nails instead of galvanized sinking nails upon forensic examination.  Prior to the accident, Mr. Uggla had hired a home inspector to inspect the premises to note any issues before purchasing the home.  The Home Inspector noted problems with the second-story deck, but not the railing during the inspection of the premises.

Mr. Grogan argued the Home Inspector did not perform a pressure test of the railing and failed to note that the railing was negligently constructed and not up to local, state, or national building codes during the inspection of the deck.  Mr. Grogan claimed that the Home Inspector was liable to him as a third party for failing to conduct a thorough and proper inspection as set forth above.  Mr. Grogan argued that the Home Inspector negligently misrepresented the condition of the deck railing resulting in his injury.  The Tennessee Court of Appeals, while ruling in favor of the Home Inspector, found that the elements of ordinary Negligence were also available to Mr. Grogan as against the Home Inspector.

The facts relevant to the appeal revealed that the Home Inspector did not undertake a “building codes inspection”, but only a visual inspection of the property at the request of Mr. Uggla for the purposes of purchasing the home.  A relevant statute for the State of Tennessee also states that a home inspection is not “a compliance inspection for building codes.” TCA 62-6-302(3)(B)(2009).  A building codes inspection was outside the scope of services in the performance agreement between the Home Inspector and Defendant.

Upon review of the facts and the applicable state statute, the Tennessee Supreme Court of Tennessee found in favor of the Home Inspector citing that the contractual relationship between the Defendant and Home Inspector did not cover third parties including guests, patrons, etc. whether they are foreseeable or not.  The relationship between the Home Inspector and Defendant was also not related to the inspection of code violations and regulations on the property.  The court found that the Home Inspector was therefore not negligent and affirmed the judgment of the Home Inspector.

The Tennessee Supreme Court, in ruling in favor of the Home Inspector, also put Home Inspectors on notice as to how to handle their contracts and undertakings on particular premises.  A Home Inspector in a similar scenario would need to ensure that the contractual relationship does not include anyone other than the homeowner or prospective buyer.  A Home Inspector also need not perform a building code inspection when related to a visual home inspection for their client.  Home inspectors must be mindful of the potential claims down the line and draft their contracts in such a way that will limit or waive your liability to any potential or future foreseeable parties.

Are you a home inspector, homeowner, contractor, or otherwise that needs a contract drafted for your business?  Are you concerned that your contract is dated and perhaps could result in future liability due to the ever-changing laws of the State of Tennessee and the United States? Spicer Rudstrom, PLLC. is here to assist all business practitioners with their needs including contracts, business, and litigation services.

Luke Jerkins focuses on Litigation (Automobile, Business and Commercial, Construction, Employment Practices, Insurance Coverage, Insurance Defense, Property and Casualty), Insurance Subrogation, Workers’ Compensation, Premises Liability, and Products Liability law in the Nashville office.

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