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Legal Information for the Termite Inspector

As a pest control professional you are probably well aware of the trials and travails that a termite inspection presents.  The purpose of this page is to give you an overview of the legal risks out there and how to act accordingly in the face of those risks.

Termite Problems – Placing The Blame

When a termite problem proves more severe than a customer anticipated and the customer begins to realize the vast financial undertaking they are about to incur they can become disgruntled.  Often disgruntled customers turn to the legal system to sue the very pest control companies they contracted to redress their termite problem in the first place.  While not usually the first to be sued, Termite Inspection Companies are often drawn into lawsuits due to errors or misrepresentation during inspection and/or treatment.

Preventing Lawsuits

While lawsuits can not always be prevented, familiarity with the potential causes of action used against pest control companies should help you to establish procedures that would make it more difficult to lose a potential lawsuit.

Causes of Action Against Termite Company

As the owner of a termite control company you should be aware of the potential causes of action a customer may claim as a means to recover for financial and physical personal injuries as a result of your companies inspection.

  • Negligence
  • Misrepresentation
  • Strict Liability
  • Contract breach

Negligence and Misrepresentation

Negligence and misrepresentation are very broad and cover a variety of situations and topics.  The basic requirements for these suits are the same, although states do have specific approaches to portions of the requirements.
The four basic requirements for Negligence are:

  • The existence of a duty
  • A breach of that duty
  • That factually and proximately caused
  • The damages.

All the above elements must be present for a successful lawsuit on the basis of negligence.

Defense to Negligence

The main defenses to negligence include:

  • Contributory Negligence
    • Contributory negligence occurs when the plaintiff is partially at fault.  This often bars the recovery of all damages.  This defense is very strict, and is not commonly allowed.
  • Comparative Fault
  • Comparative fault reduces the amount of money recoverable by the percent the plaintiff is at fault.  An example of this would be if the plaintiff is 25% at fault, he or she would only be able to recover 75% of the total.
  • Assumption of the risk.
  • Assumption of the risk is when the plaintiff is fully aware of the risk, and voluntarily accepts it. This has the effect of barring the plaintiff from recovering damages. 

States laws take different approaches for which principles apply in what circumstances, so consult an attorney before taking action.


Applicability of Negligence in a termite lawsuit

An example of a successful negligence suit against a pest control company occurred in Kornberg v Getz Exterminators, Inc. (1961, Mo) 341 SW2d 819.  The court reversing a dismissal of the homeowners’ petition in an action for damages resulting from an exterminator’s application of insecticide to their home, held that the exterminator’s placement of an “alleged insecticide” in the home of the plaintiff which caused the home’s atmosphere to be “permeated in variant degrees with putrid, vile, toxic, noxious odors” charged negligence with as much particularity as should be expected, since the facts concerning what the exterminator had done or had failed to do so as to cause the “long-standing stench” in the home, and especially the nature, manner of applying, and the effects of the insecticide used by the exterminator, were peculiarly within the knowledge of the exterminator, and were matters of which the homeowners could not reasonably be expected to know.
In other words the exterminated improperly treated a customer’s home with an insecticide, which caused damage to home and caused injury to the homeowner.

Misrepresentation

In misrepresentation there are five basic requirements:

  • The defendant made a misrepresentation of a material fact (Either intentionally or negligently)
  • The intent to induce the plaintiff’s reliance
  • The plaintiff was justified in relying
  • Damages ensued from reliance on the defendant’s misrepresentation

Defenses to Misrepresentation

The main defenses to misrepresentation include: contributory negligence, comparative fault, and assumption of the risk as defined above.  Negligence and misrepresentation cases often have specific facts that effect portions of the requirements and each state has different laws for when the defenses are appropriate, so consult an attorney for further information.


Applicability of Misrepresentation in a termite lawsuit

In Perschall v Raney (1985, 4th Dist) 137 Ill App 3d 978, a Termite inspector was found liable to purchasers of home for negligent misrepresentation where termite inspection report contained inspector’s opinion that there was no structural damage to property and where, after closing, purchasers discovered active infestation of termites and beetles as well as extensive structural damage. Although the inspector’s report did not contain an unequivocal guarantee of accuracy and was not delivered to purchasers, the purchasers’ reliance on the inspector’s report was foreseeable and justifiable where the inspector was aware that premises were being sold and the report would be provided to and relied on by the prospective purchaser, and the inspector invited substantial reliance by stating that there was no infestation, thereby negating effect of contractual disclaimer stating that report was not a guarantee that infestation did or did not exist.

Strict Liability

The basic theory behind a strict liability lawsuit, is that a defendant is liable even in the absence of fault or negligence for acts that are ultra hazardous and cannot be made safe
The defendant is strictly liable for activities that …

  • Pose a risk of severe harm to persons or property;
  • Cannot be made safe no matter what precautions taken; and
  • Are uncommon in the area conducted

Defenses to Strict Liability

The two most often cited defenses to a claim of strict liability are assumption of the risk or comparative negligence.

Assumption of the risk can be used as a defense when the plaintiff is aware of the dangerous nature of the activity and disregards the danger at their own peril.

Comparative negligence can be used to offset recovery of a strict liability claim when a plaintiff acts negligently (see negligence discussion above) to add further injury to the situation.  Essentially if the plaintiff is responsible for making the situation worse by their own actions the damage that can be recovered is lessoned.

Application to a Termite Lawsuit

In Luthringer v. Moore (1948) 31 Cal.2d 489, the court found that the spraying of insecticides to treat a termite infestation was an ultra hazardous activity and since the plaintiff was injured as a result of breathing in the chemicals the defendant was liable even in the absence of any specific acts of negligence.

Contract breach

A contract breach occurs when a termite inspection company fails to live up the terms of the agreed upon contract.

Application to a Termite Lawsuit

Because a breach of contract is so specific to the terms of the agreement between the Termite Inspection Company and the customer, this lawsuit could arise under a number of circumstances.  Where Pest Management Professionals often fall into trouble is providing a guarantee that they will completely annihilate a termite infestation from a structure and guarantee against re-infestation in the future.  As you can imagine the difficulty in a termite treatment and the hidden nature of various termite species make this claim very hard to live up to.  Since the time and effort required to fix unforeseen problems can be much more expensive than the price originally agreed upon, termite inspection professionals can fall into the belief that they are not responsible.  It all depends on the interpretation of the contracts.

What you can do as a Pest Control Company to Reduce the Risk of a Lawsuit

Treat Termite work as a Unique Service

If you have any experience with Termite work you are well aware that resolving a termite infestation is not as simple as most general pest control problems.  Termites are hard to discover without a thorough inspection of the house.  Because a Termite inspection requires special attention your contract with the customer should reflect the increased difficulty.

  1. Use different service agreement than general service

Disclosure is key. You should be upfront with your customers and explain what they can and cannot expect from a termite service. Your service agreement should reflect the special nature of a termite inspection and should be gone over as thoroughly as possible so that the customer is not taken by surprise. If the customer accepts the possibility that your service is not the cure-all they were hoping for, there is less of a chance that they will take their anger and frustration and turn it into a costly lawsuit.

Disclaimers are not impenetrable.  No matter how clear any disclaimers you have placed in your service agreement it has been clearly established by the courts that you cannot disclaim acts that amount to gross negligence.

  1. Termite service may not lend itself to warranty

Unlike a general pest service it may be difficult to warranty against termites.  Termites are primarily hidden from general detection.  When preparing a service agreement be cognizant of what your customers situation is and reflect that in your decision of whether it is prudent to offer a warranty on the work.

Proper Training

Termite Inspections have routinely been one of the most difficult and time consuming services provided by pest control professionals.  Like with any job, professionalism comes from experience and training.  Without proper training it may be impossible for a technician to properly treat a termite problem.  Some states may require special certification for technicians to service a termite infestation.  Where certification is required, sending technicians out without the required certification is almost a sure way to insure that your defense in a lawsuit will fail.  In any case proper training and certification is the most efficient way to prevail in a negligence suit filed by a disgruntled customer.  If you can prove that your technician acted according to the training and certification guidelines provided by your state controlling agency the less of a likelihood you will be found liable if brought to court.

It will also greatly reduce the risk of a lawsuit if simple termite training is provided to the customer as a part of the service.  With a strong personal connection between the customer and the company it is much more difficult for the customer to turn to legal action as recourse.

57B Am. Jur. 2d Negligence § 769 (2009).

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