What to do about a machine that damaged our property?

We entered into a contract with a soft water provider. The first machine, that we signed a contract on, did not work. It was replaced with a different machine, not listed on the contract, which sprouted a pin hole in the pipe and flooded our garage. Is the original contact on the first machine void? We did not sign a new contract with the replacement machine. On the original contract it also states they include all materials, but they chose to use our exsisting 8 year old pipes. Is this negligence?

Asked on September 21, 2012 under Business Law, Arizona

Answers:

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

Answered 8 years ago | Contributor

The original contract is still valid.  You can sue the company for breach of contract.  The breach of contract would be based on the following:  first machine did not work, replacement machine was not one that had been approved pursuant to the contract, and the company did not use all of its own materials as the contract required.

In addition to a cause of action (claim) for breach of contract, your lawsuit could also include a separate cause of action (claim) for negligence.

Negligence is the failure to exercise due care (that degree of care that a reasonable water softener company would have exercised under the same or similar circumstances to prevent foreseeable harm).  In order to prove negligence, you will need to prove duty (of due care mentioned above), breach of duty (failure to exercise due care), actual cause, proximate cause, and damages.

Actual cause means but for the company using the eight year old pipes, would your property have been flooded?  If the answer is no, actual cause has been established.  Proximate cause means are there any unforeseeable, intervening acts which would relieve the company of liability?  If the answer is no, proximate cause has been established.  Damages means the amount of monetary compensation you are seeking in your lawsuit.

Your damages for breach of contract and negligence would be the cost of repairs to your flooded garage.


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