OK, I haven’t kept up the blog. This week I have an excuse: I was on jury duty.
The case was about negligent builders. 3rd generation members of a highly-respected local residential building company family decided to do a couple of spec houses on their own, so that they could get experience with the financing end of things; they’d been working as project managers in the family business. So they built this $470K house, which was bought by a family from Texas. The 2nd winter they’re there, they went back to TX for the holidays. Meanwhile, the temp went down to zero, with high winds. Hubby had to return early for business reasons, returned to flooded house. A copper pipe had burst in a chase between 2nd-floor bathrooms. About $160K in damage to structure ($61K) and contents, paid for by their insurance company, who brought the suit. The homeowners had the $500 deductible tacked on, though they really hadn’t wanted to bring suit. (Indeed, the aforementioned building co. that the defendants were involved with did the restoration.) As one of my fellow jurors said, “If this were about $40K, we wouldn’t be here.” In February of ’07, when the builders still owned the building, temperatures were even lower, winds nearly as high, and the thermostat set even lower, yet the pipes didn’t freeze.
Element of negligence claimed: there was no “true wall” between the unheated attic space over the garage, and one of the bathrooms. This wall was the tub shower surround, with friction-fit insulation on the outside (attic side). The inspector had made them take the kraft paper off that insulation as a fire hazard, as there was no wall covering it. This is on a southwest interior corner. The forensic engineer claimed that in the high wind conditions, air blew through the soffit and the insulation, under the void created by the rounding of the tub, and into the pipe chase. The pipes there were not insulated, because they didn’t have to be, being surrounded by interior walls…except that apparently that space was communicating with untreated air and should have been dealt with like a crawl space, OR there should have been wood or sheetrock blocking the air.
The installation was according to code, was passed, and the builders are quite meticulous about cosmetic detail. I don’t think that the loss of the paper backing was that big an issue; you lose some r value and gain some permeability. (In fact they had replaced the insulation with non-backed insulation.) But I was asked to believe that there was enough wind to force air up the soffit, blow 6 feet to that wall, go under the 6″ or so of insulation not backed on the bottom, be drawn under the tub and cool that chase to <32 for long enough for the pipes to freeze, with heat on at 60. A power failure alone wouldn’t have done it, because of the thermal mass of the house, though it was possible, given that the pipe was near to the garage and would lose temperature more quickly. But Ohio Edison no longer had or doesn’t keep outage information, and nobody asked about the clocks in the house.
What was annoying was all of the BS info being presented to sway the jury…arguments about whether it was actually 55 or 60 or should have been 68 per insurers’ recommendations, whether they should have turned the water off. (That wouldn’t have been BS had we gotten to proximate cause, I suppose.) The house felt tropical at 61-62 because of the moisture…wouldn’t it feel COLD at that temp? (not if it was the hot water pipe ruptured…as a perceptive juror pointed out.) If OSB would have sufficed against the insulation, why not the fiberglass surround? Owners felt a draft under the vanity, but didn’t report it when they had reported other problems. And the lawyers sucked. I had so many questions that I couldn’t ask, things that seemed obvious, but they weren’t asking, because neither one had any knowledge of construction whatsoever. The fact that I was even on this case and not voir dire’d off shows they’re hacks; they asked about insurance industry connections but not building trades. As it turned out, HALF the jury (3 males, including me, 1 female) had building trades connections of one sort or another. Not that it helped either side; we were split evenly. The plaintiff counsel was particularly slimy, not well organized, trading in emotionalism. The way he browbeat the defendants during cross of their testimony was shameful.
Had we gotten to compensation it would have been more interesting yet. One juror wanted to award the $500 deductible to the homeowner and that was IT. The defense had done a pretty good job of discrediting figures. (totalling out a non-depreciated $2500 Toro mower for rust? ) The family was in $144/day lodging for 5.5 mo, largely due to dawdling by the insurance co.
Anyway, at 10:30 today we finally got to discuss the case. Nobody else much wanted the job, so I became the foreman. An initial check showed 6 for the defense (6 out of 8 needed) but people wanted to talk it out. We had one guy (BME, had worked for NASA, had building experience) who was adamantly for the plaintiff, and another guy (builder) leaning that way, as well as eventually another woman. So it became 5-3. After some fairly loose discussion we broke for lunch. A bunch wanted to go to this sandwich place they had heard good things about, and they assured me there were veggie or fish options. Well, they were out of tuna, and they no longer do the crab cakes because of prices, so they basically had no entrees, so I bid them adieu. Yeah, I could have made a meal of tomato soup and cupcakes, or have them invent a price for a cheese sub, but why would or should I? Being out of menu items is shameful at any time; being out of your non-meat options on a Friday in Lent is inexcusable (though it was more likely ignorance than active prejudice). So I popped over to McD’s to try the Fish McBites (OK, not cosmic, probably better than the Filet-o-Fish.)
During lunch I had an idea to move things along. I pointed out that the real division in the jury was whether the definition of “workmanlike manner” was the building code, or some other standard. Everyone agreed that the code COULD be a standard. When I said, “If we didn’t have a building code, what would the standard be? How would we establish it?” nobody had any ideas.(And this was a pretty bright and not at ALL liberal crowd). It eventually became clear that the code was what we had to apply, and we eventually voted 7-1 for the defense. There’s a slightly incoherent element here, because we mostly agreed that the damn board should have been there. (it is now!) But there was also a freak element to the incident. I later got called by one of the recalcitrant jurors who had been compelled to check the building code…and it doesn’t define what constitutes a wall (that was his personal issue.)
Afterwards he and I were talking to the defendants. In an amusing incident, I was referring to one of Plaintiff’s most egregious misstatements. “…’a wall you can walk through’? Uh, no; there’s a fucking TUB SURROUND there.”, and just then Plaintiff came out of the jury room. After he passed, a defendant said, “You have GREAT timing”, clearly seeing Plaintiff hearing himself being mocked just made his day. Personally, I couldn’t look at him during closing arguments. That said, we did take care not to let that contaminate our judgement. But I’d have to say that the builders largely got off on a technicality. This same juror later talked to Plaintiff and told him everything he’d done wrong. “You’re a better man than I am, ” I said when he told me.
OK, here’s my advice for lawyers:
1, Don’t deal with snark or emotion. All we want is the facts. Be kind.
2. If part of the applicable law involves “workmanlike manner” and “ordinary care”and something passes code, you might want to offer evidence as to what else that is in the industry.
3. If you’re a large national home insurance company, hire a lawyer with a clue about the building trades.
4. Enter the freaking building code into evidence.
5. If you’re defending builders, find a witness besides them to testify that they follow good building practice.
6. When you have to prove that “a reasonably careful person would have anticipated that an act…would likely result in some damage”, and your expert witness admits that it took him 2 weeks to find the problem, YOU have a problem.
7. Using the word “profit” as an epithet doesn’t fly in any part of Portage Co. east of the Kent city limits. Nor does trying to bring up the insurance co.’s profit margins (besides bringing an instant objection)
And last, a shout-out to my fellow jurors: there are great human beings, attentive, humane, and just, and it was a pleasure to work with them.