If we purchased a pool just over a year ago but have had several problems with it, can we file a lawsuit based on poor workmanship and defective materials?

We have had the pool company out 4 times to fix leaks in the plumbing and now the flagstone coping and concrete have cracked. They are now saying it’s not in warranty because it’s been over a year.

Asked on September 20, 2012 under Business Law, Texas

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If your lawsuit is based on poor workmanship and defective materials, your lawsuit would be for negligence.

Negligence is the failure to exercise due care (that degree of care that a reasonable pool company would have exercised under the same or similar circumstances to prevent foreseeable harm).  If you are claiming that the product itself is defective, then the standard of care would be that degree of care that a reasonable manufacturer would have exercised under the same or similar circumstances to produce a product that is not defective.

To prove negligence, you will need to prove duty (of due care) mentioned above, breach of the duty of due care (failure to exercise due care), actual cause, proximate cause, and damages.

Actual cause means but for the pool company, would the plumbing have leaked and/or would the concrete have cracked?  If the answer is no, actual cause has been established.  Proximate cause means are there any unforeseeable, intervening acts which would relieve the pool company of liability?  If the answer is no, proximate cause has been established.  Damages means the amount of compensation you are seeking in your lawsuit for negligence.  Your damages would be the cost of repairs.  You will need to mitigate (minimize) damages by selecting a contractor to do the work whose fees are comparable to other contractors in the area doing this type of work.  If you were to select the most expensive contractor you could find to repair the damage, you would have failed to mitigate damages and your damages would be reduced accordingly.


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