Civil/Commercial Litigation (Lawsuits)/plumber

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Question
I had a slow running drain and called a plumber to fix it. He ended up breaking his roto rooter off inside the pipe. Now he wants to charge me to dig it up outside to fix it. Can he do this or is he liable to fix it as it is worse than it was before?

Answer
Hello Gayle,


Before I respond further to your question, I must make clear that I do not represent you, and cannot give you individual particularized legal advice. No attorney client relationship is created by this email. For legal advice, you should hire your own attorney, and follow their advice. My role with AllExperts is limited to providing general information and suggestions for educational or general knowledge purposes. Before you take any action, consult with your own attorney.

I do not practice in your state, and haven't seen the contract between you and your plumber.  Generally speaking, a worker such as your plumber is recognized to have a duty to act with due care in executing their function for a customer.  I would take the position that your plumber failed that duty in breaking his tool while working at your property.  The breach of a duty like that is part of the definition of negligence in my state.  Another part of the definition of negligence is damages, and it seems to me like the broken tool inside your pipe is the proximate cause of damage to you measured by the cost of getting it removed.  Further, whether the terms of the contract are express or implied, it seems to me that the plumber is in breach of the contract for failing to perform the work in a professional workman-like manner.

My recommendation then is do not wait for this dreadful plumber to sue you, and don't have this person attempt to fix their own mistake.  Rather, I suggest that you get a couple of bids from others to remove the tool and complete the job.  I also suggest that you send a letter, sign it, date it, and keep a copy, to the plumber inviting him to come and inspect the work before you have someone else fix it.  That will protect you from a spoliation defense; essentially an idea that you've destroyed evidence by getting the plumbing fixed.

Furthermore, I suggest that you immediately get an attorney licensed in your state to advise you on this situation and examine my suggestions in the application of your problem and local rules.  It may be of more value to your outcome to have your lawyer issue the inspection letter, and take other action on your behalf.  With your lawyer's help, I suggest that you sue the plumber for the measure of damages you can calculate based on your estimates or actual cost to fix the problem.

I hope this helps, good luck to you and your family.

Morgan Smith
SMITH & RAVER LLP
Minneapolis, Minnesota
http://smith-and-raver-llp.biz
Conciliation Court * Civil Litigation * Forfeitures * Construction * Family Law

Civil/Commercial Litigation (Lawsuits)

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Morgan Smith

Expertise

Civil litigation (contract claims, landlord-tenant actions, forfeiture suits, residential construction defect matters), Family law (divorce, custody modifications, child support modifications, and pre-nuptial agreement), new business start-ups, civil forfeiture, asset forfeiture. Please do not submit your question as Private. It is my policy not to answer Private questions from members of the public here on AllExperts; I reserve that function to my private clients. Although AllExperts permits me to change your questions from Private to Public, it is my policy not to do that. I encourage you to resubmit your question as a public question. Your public question has the potential to help others with similar concerns. I suggest that you use a pretend name and otherwise alter sensitive facts that make you inclined to treat your question as Private, and submit your question to me Publicly.

Experience

I've been practicing law in the State of Minnesota since 1995. I've worked in skyscraper firms, and now my own small firm in Minneapolis. Past answers from my earlier participation on AllExperts is posted at: http://en.allexperts.com/q/Civil-Commercial-Litigation-911/indexExp_80217.htm

Publications
AllExperts, Yahoo Answers, http://smith-and-raver-llp.biz/News.html

Education/Credentials
J.D. William Mitchell College of Law, St Paul, MN

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