Author – Mark Cohen and Nick Gromicko
We often see clauses in inspection reports that take this form:
“No visible evidence of insert applicable defect.”
We have concerns about the words “visible” and “evidence.”
First, let us consider the word “visible.” The last thing an inspector wants is a lawsuit in which the disgruntled client alleges that the defect was visible at the time of the inspection. Even if the inspector ultimately prevails, the battle may be costly.
Most people would construe “No visible evidence of insert applicable defect” to mean that the defect doesn’t exist. But what the inspector meant to convey is that he/she didn’t observe any evidence of a defect.
A court reviewing such language in a report may find that the language is ambiguous, and when a court finds an ambiguity in a document, the court will usually construe the ambiguity against the party that drafted the document (the inspector).
If an inspector says something was not visible, other people could argue saying that it is visible. In contrast, if an inspector says something was not observed by him/her… no one can argue with that. An inspector’s duty isn’t to report on everything visible, but rather only those defects he/she observed and deems material.
Now, let us consider the word “evidence.” Evidence suggests something that is permanent. Laymen envision evidence rooms that preserve evidence forever. This is contrary to the real world where indications of a defect may exist at one time but not at some other time. Instead, consider using “indications.” For example, “I did not observe any indications of insert defect.” Better yet, “I did not observe any indications of insert defect during my inspection.” This reinforces the idea that an inspection is only a snapshot in time. It also restates that the inspector’s duty is to report only what he/she observed and deems material… not everything that is visible.
Not recommended: “No visible evidence of insert applicable defect.”
Recommended: “I did not observe any indications of insert defect during my inspection.”
Reprinted with permission from:
~ Mark Cohen and Nick Gromicko
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