[WSBARP] Do principles of comparative fault apply

[nestor at pplsweb.com]

The court ruled in Sellers favor in a similar scenario in Douglas v. Visser
as stated in this chain. Buyer had a duty to further investigate.

 

Nestor Gorfinkel, Attorney at Law 

Admitted to practice law in Washington & Florida 

Florida Civil-Law (International) Notary

 <mailto:nestor at pplsweb.com> nestor at pplsweb.com 

 

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Tuesday, July 31, 2018 10:57 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Do principles of comparative fault apply

 

I don't think so, but it's an interesting idea. If a seller negligently
misrepresents, say, a leak in the foundation; and then buyer's inspector
sees the water stains but negligently doesn't follow up sufficiently to
determine the extent of the leak; is it comparative negligence, or does
buyer's failure to inquire further completely eliminate seller's liability
for the negligent misrepresentation?

 

Off the cuff, I would say that seller in that scenario is not liable.
Elements of negligent misrepresentation require that (a) seller negligently
misrepresents, (b) buyer relies on the misrep, and (c) buyer's reliance is
justified. If the buyer's duty to inquire further is raised by seeing the
water stains, then I think that buyer's reliance on the misrep can't be
justified. And arguably, buyer did not rely on the misrep at all, because
buyer did an inspection to determine the property condition independently.

 

I don't necessarily like that result; it gives seller broad latitude to
"negligently" skate over problem conditions that a diligent buyer probably,
but not certainly, would find; and in a later lawsuit hindsight is going to
make it look too much like the buyer just didn't do a good inspection. But I
think that's state of the law for us: when it comes to real estate, it's
buyer beware, and the buyer needs to be really thorough and follow up on any
hint of a problem.

 

The contributory fault statutes in Ch. 4.22 RCW don't apply because they are
for injury to persons or harm to property, and don't cover a misrep as to
condition of property to be sold.

 

Sincerely,

 

Eric

 

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1417 31st Ave South

Seattle WA  98144-3909

phone 206-625-0092

fax 206-625-9040

 

From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Catherine Clark
Sent: Tuesday, July 31, 2018 10:29 AM
To: WSBA Real Property Listserve; KCBA Real Property, Probate and Trust Law
Discussion List
Subject: [WSBARP] Do principles of comparative fault apply

 

To cases where the duty to inquire further in the purchase of real estate is
asserted?

 

I'm in a mediation where this has been asserted.  I can find no case so
stating.

 

Any thoughts appreciated.  Thanks.

 

Catherine C. Clark
Law Office of Catherine C. Clark PLLC
2200 Sixth Avenue, Suite 1250
Seattle, WA 98121
Phone: (206) 838-2528
Direct Dial: (206) 274-7941
Cell: (206) 409-8938
Fax: (206) 374-3003
Email: cat at loccc.com <mailto:cat at loccc.com> 

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