One week after Shirley and David Finch purchased a home in Parkersburg, West Virginia, they discovered defects in the basement—defects they hadn’t noticed before because the area was blocked from view by the previous owner’s workbench. The couple had hired InspecTech to complete an inspection and report prior to the purchase of the home, so they contacted them for an explanation. The company’s inspector reinspected the home and reported water damage, prior efforts to fix it, water infiltration, and structural issues with the foundation. InspecTech refused to pay for any costs incurred because the agreement they had with the Finches included unconditional release for damages.

The Finches sued the company for negligence and $39,000 to cover the cost of repairs.

InspecTech maintained the Finches had no right to collect, citing the contract which stated “The CLIENT (Finches) hereby releases and exempts the COMPANY and its agents and employees of and from all liability and responsibility for the cost of repairing or replacing an unreported defect or deficiency.” It argued the couple freely entered into the contract; the language about unconditional release was unambiguous; and the contract should be enforced citing precedence that “when an express agreement is freely and fairly made, between parties who are in an equal bargaining position, and there is no public interest with which the agreement interferes, it generally will be upheld.”

The Finches countered that unconditional release of liability was against public interest because Flanagan presented himself as a certified home inspector in West Virginia, yet failed to meet state standards. Contractual release would give them no recourse against negligence and provide disincentive for experts to adequately perform services. InspecTech said its contracts and services were based on business policy, not public policy, and maintained the right to enter into contracts with any other party, as they did with the Finches.

Decision:
The Circuit Court of Wood County found the Finches had contractually released InspecTech from all liability and responsibility for costs of repair and granted a summary judgment in favor of InspecTech. The Finches appealed.

The Supreme Court of Appeals of West Virginia reversed the decision, finding there was a public interest because home inspectors are governed by the State of West Virginia and required to comply with guidelines regulating the home inspection industry for the protection of the consumers. The Finches are entitled to receive the protections afforded by such regulations and should not be expected to relinquish such safeguards as a condition to receive home inspection services.

Water Log The Saturday Evening Post

Unfortunately, the finish line turned out to be a 15-foot yellow gate at the entrance to the reservoirs. Although the steel gate had been there for decades, Maribeth had never seen it closed. When she finally looked up, it was too late to avoid impact; her bike skidded under the gate, her head smashed into the barrier, and she broke several vertebrae in her neck.

The Metropolitan District Commission (MDC), a nonprofit water utility company, owns the West Hartford Reservoirs. Although they are used for water filtration, many joggers, walkers, and cyclists also enjoy the 3,000 acres of wooded trails.

Maribeth sued the MDC for negligence, claiming that it had failed to protect mountain bikers by not warning them that the gate, which was usually open, was now closed.

The MDC, a municipal corporation, argued that it was immune from liability under the common law and statutory doctrine of government. It also claimed that the Recreational Land Use Act barred Blonski recovering for injuries incurred while engaged in the dangerous adventure sport of mountain biking. Finally, the MDC maintained that even if the utility was not immune from liability, Blonski’s negligence had caused her injuries.

The utility said that after the 9/11 attacks it had decided to close the gate as a security measure against terrorists and contamination. Despite the change in policy, the MDC maintained that the gate was clearly visible—and that, in this case, Blonski wasn’t paying enough attention as she rode the well-marked trails.

At the trial witnesses stated that when they first saw the closed gate they had no difficulty going around it. A police report stated that the trail was straight and level for 500 feet away and that the gate was clearly visible.

Decision:
Blonski was awarded $2.9 million, less 30 percent. The jury found her 30 percent responsible for the collision, with the MDC primarily negligent for not posting a sign declaring the gate closed.

Taken for a Ride The Saturday Evening Post