The real estate agent found someone to come take a look based on the home inspector's recommendation that a structural engineer or foundations contractor come out and inspect the pro. We were concerned because of some settlement issues and a retaining wall. The foundation contractor said he wouldn't bother with doing anything and that the settlement was most likely from a leaky pool which was filled in, but it wasn't. We relied on this information and purchased the house. Some cracks which had been filled before we bought the house opened up again. We hired the same guy to come out. He did a survey of the property & found that the foundation was really uneven and recommended installing a bunch of helical piers. Was he negligent in not doing this in the first place? What can we do?
As you know, I took a shot at your last question which was similar in nature. Even with these additional facts, it's still not so easy as to say "yes" or "no" to negligence. For instance, you don't say whether you hired and paid for the foundation contractor the first time. Even more, I think you should sit with counsel and get their opinion. As to your issue with the local bar, my thoughts are repeated here: If your local bar association told you they would not help you, consider the source. They (and their attorneys) are apparently too busy to help people. But, their lack of desire to help you translates into your lucky day, and you will be better for it. Find an attorney on who specializes in real estate, and enjoys helping people so much they are willing to at least type up simple answers rather than hide behind a bar association. As an attorney, I am very impressed with the quality and quantity of the responses by attorneys here on . I think you will be quite happy by choosing someone here!
In most instances, negligence is not a black and white proposition. There are many factors which go into that evaluation process. The principal tool that we use to evaluate negligence is what another reasonable foundation contractor working in your community would have done when confronted with the initial situation. Remember that a contractor is not a guarantor of a particular result. The test is whether or not he/she acted reasonably in giving you the advice that he/she gave you about the settlement resulting from a leaky pool.
I would recommend that you speak with a couple of other foundation contractors and get their take on it. Ultimately, this is the subject of expert opinion as to what your contractor should have done when you first presented the issue and so it will be illuminating to learn what other professionals in the trade would say. If they immediately suggest that they would have done something differently, then, perhaps, you might have a case of negligence. On the other hand, they may well tell you that the contractor's advice was not necessarily improper, given the circumstances under which he was being asked to evaluate it.
