As defined, a duty to warn is a concept that arises in the law of torts in several circumstances, indicating that a party will be held liable for bodily injuries and/or property damage caused to another, where the party had the opportunity to warn the other of a hazard and failed to do so.
The Risks Facing Artisan Contractors
In today's very litigious environment, large and small artisan contractors face a myriad of potential risks when it comes to providing a service or repair at a customer location. A customer often has high expectations, and that customer may be quick to allege negligence in a contractor's work. Even a simple complaint has the potential to escalate into a legal dispute.
The question at hand is – does this contractor have a “duty to warn” their customer of a potential hazard when called in to service or repair a specifically identified matter?
Here's an example: the property manager of a multi-unit apartment building hires an electrician to replace an electrical outlet under the sink used to plug in the dishwasher in one of the units. The electrician identifies this as a common outlet in need of replacement when code would require a GFCI type outlet, and as such, replaces the damaged outlet with the GFCI outlet. The question is – does this contractor have a duty to warn the property manager that all the other units should be inspected to identify if they also have non-GFCI electrical outlets near water posing an electrical shock hazard and offer to inspect and replace them?
The answer is predicated upon the property manager having a contract with this electrician, which includes legal wording identifying the contractor's responsibility to also “inspect” for safety. In this case, the electrician would have a duty to warn. The electrician can be held legally responsible for fraudulent concealment of a known defect and/or hazard by not warning the property manager of the risk.
However, it is quite common for artisan contractors to perform one-off types of services and repair work at the customer's request without having a contract. In that scenario, it is not specifically the responsibility of the contractor to warn of the defect and/or hazard – but it is good business practice for the contractor in this scenario to:
Warn the customer of the defect and/or hazard – IN WRITING.
Offer to inspect and replace the defective or damaged items – IN WRITING.
Detail the work necessary to resolve the defect and/or hazard – IN WRITING.
Obtain a signed confirmation of the proposal of service from the customer - IN WRITING.
Verify and obtain a signed declination of service by the customer – IN WRITING.
Maintain and file all offers of service/proposals/confirmations and declinations of service.
Protecting Your Artisan Contractor Business
We live in a very litigious society. The offer of service as identified acts to mitigate potential liability claims. When it comes to liability, the last contractor who “touched” the device, etc., that caused property damage and/or bodily injury is brought into the claim – even if the service or repair performed had nothing to do with the actual claim.
Do artisan contractors hired to perform one-off service and repair work have a duty to warn of a hazard? The answer is no, not really, but to protect your company's assets, if you see something, say something and – GET IT IN WRITING!
Disclaimer: WorkersCompensation.com publishes independently generated writings from a variety of workers' compensation industry stakeholders. The opinions expressed are solely those of the author and do not necessarily reflect those of WorkersCompensation.com.