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Mikes Welding, I did contact an attorney friend, but just as MMW said, I would like to know if any of you have run into this type of a problem and if so what did you do so I can pass info onto my attorney.
Shovelan, Yes I did the finish product, I rebuilt it the same way that it was originally built back in the 70s.
My apologies if I sounded a bit snarky. It's just that with legal matters, even similar incidents have little bearing on your situation because there are so many variables. But yes, it does help to have input from others.
Have you contacted your material provider? That would be my first reaction. If the provider is willing to stand behind their product then your butt is covered, except for the cost of your labor and that will be something to negotiate with the provider.
The upside of getting the provider involved is they have the legal expertise you need. They have to defend their products daily and have all the arguments.
It also gives your customer someone to go after with much deeper pockets than yours.
I am in the middle of a minor skirmish with my galvanizer at this point. They have the arguments down pat but we both understand it is not unlike buying a used car, arguments are negotiations.
Not being more than a hobby welder I can not comment on the welding aspects of this situation. However having been sued in the past in a product liability case I can tell you that Mikeswelding's advice while it might have sounded snarky is spot on.
What I learned from being sued is this-and it is what most people myself included do not know. Under 'tort law' which is the civil law most states follow is the FRENCH court model- where you are automatically guilty and have to prove your innocence vs ENGLISH law that we use for criminal law. So if something fails it is assumed defective and YOU have to prove it was not.
The fact stated about some vs all galvanizing in a court room would show prior knowledge of a potential problem (aka defect) and it was not addressed. What would typically happen is the jury would rule in the favor of the plantiff- if they believed you wanted it galvanized-but were over ruled both of you would be found guilty and in my state they would also determine percentage of responsibility. So if the person over ruling you had more responsibility for the project they would be assigned a higher percentage of 'guilty' and pay more in the settlement but you will also pay something for your neglect and liability.
Bottom line is -if it goes to court it will cost you something. That is the bad news- the good news is if you are insured most times they (insurance company thru their lawyer) will try to settle out of court, no one likes to go in front of a jury-too unpredictable. While you may prevail and be found not guilty in front of jury, most likely they will award something. Insurance company wants to control how much they pay out. Likewise the plaintiffs lawyer wants to know he is getting something for his client and settling out of court-prevents a jury from lowballing.
So best of luck if it goes to court hopefully some kind of solution can be reached between all parties. You most definitely want to talk to a lawyer to help reduce your exposure for future jobs and develop a means to better protect yourself.
131RE is right about tort law. In fact, the word "tort" is French for "wrong or harm."
With regard to lowering one's risk profile (and do not take this as legal advice), I always included wording on my invoices that stated explicitly that the work was done "as specified by the Buyer" or "in accordance with design specifications." Therefore, if you are not an engineer or architect by training, then under tort law it would be exceedingly difficult to be found negligent.
You can go even further by disclaiming any warranty, express or implied, as to the suitability of the work.
However, as always, check with an attorney for the best "disclaimer" language.
Also, as 131RE stated, any legal action is going to go in search of "deep pockets," and most small welding outfits I know would not fit that description.
I don't know if everyone here knows about the guy in fairless hills PA that died on the job at CSC Sugar back in around Feb. Well, I did all the work for the company when it was here in swedesboro nj. The guy died because he was cleaning out a clogged sugar hopper and the loader driver didn't know he was in there and basically buried him alive in sugar. I did quite a bit of work for the company at the fairless hills location along with building the screen for this very hopper. It is a very large hopper at 9'w x 14' long x 8' deep. I built the screen so it was 18" down from the top. Basically you can see anyone up there unless they were sleeping on the job. Well the company went through a lot of management changes, I got thrown out for not being a good contractor and not filling the new managers pocket. Well, he decided to change the screen to be at the bottom, 8' down. Just like I said when I made the screen, if you put the screen at the bottom and it clogs, you have to manually shovel out like 3 tons of sugar, and you have to have a guy out of sight. Well 2 months later, bamm... guy dies from what I said before hand.
Now I knew this guy was not smart and I usually know what can go wrong will go wrong and I actually have this on recording that if I were to build a screen at the bottom, this "could" happen. Well, being months later, I know that people are still being questioned on this OSHA investigation and if they contact me, it won't be pretty for the company.
I actually keep 2 tape recorders in my truck. I blindly record EVERY "contract" meeting" or important event. Even though the tape recording is not legal in court, I know ways of making it work out for me. I keep paperwork of every job including prints, pricing, sketches etc. This way I always cover my ass in good or bad.
Adding to my earlier comments and what weldermike stated (and thanks for defining tort- was going to do that and forgot). In addition to "Deep pockets" in any suit that has more than one potential defendant- the plaintiff's lawyer will use the 'shotgun' approach and ANY one and I mean ANY one that 'touched' the project will be named in the suit. For example the warehouse where the material came from would be named.
Reason is- the plaintiff's lawyer in legal proceeding called 'discovery' doesn't want to find out the REAL person culpable was not named and now it is too late. So even 'small' players will get named and while they Might be dismissed at a later date- it will not be before spending money hiring and answering legal things known as interrogatories, where they ask things like how much money you have and how much property and oh lying on them? It's considered perjury.
I can not comment on any other states Tort laws- I unfortunately learned all about them here in PA. But in my state a disclaimer isn't worth the paper it is printed on. Here you simply can not be absolved of liability by a person signing a paper. For example the classic sign you see at a parking lot '' We are not responsible for lost or stolen items" -- you bet your azz they are liable here. So a disclaimer holds no water in court. And can actually be used Against you- since the disclaimer is prima facia evidence you knew what they wanted to do was not a good practice and were trying to indemnify yourself by the disclaimer and went ahead and did it anyhow. Bad idea to do that.
If you are in business for yourself- and for long enough you WILL be sued. It is just a matter of when and for how much. Last time I heard a stat-something like in a typical year 1 in 13 businesses are being sued. The best protection on a job that has 'issues' is to literally walk away. You may end up paying many many times more to a law firm with respect to what you earned on that job. Not to mention the sleepless nights and stress. As they say -been there done that- and it wasn't a pleasant nearly four years of anxiety when it was finally settled literally in the eleventh hour-court was the next day when the plaintiff finally settled. So its not a fun event and one you want to avoid if at all possible. Not trying to sound like a know it all- just passing on what I learned by going to 'law'school the hard way and save someone else the nightmare.