[WSBARP] Do principles of comparative fault apply

[Eric Nelsen]

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] 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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