Working as an expert witness often feels like being a detective, and it reminds me of when I was a youngster solving crimes and playing the great game of “Clue.”
In examining a swimming pool failure, I’ll review cases and cases of documents, evidence, photographs, testimony and engineering plans, all in search of clues that could help me form opinions of what went wrong. Most pool failure cases involve a forensic site inspection to understand the lay of the land and collect additional information that might help unravel the case.
And, like a detective, I’ve seen things in the backyard that nobody should see, including pools rendered unusable only a couple years after being built. The wreckage robs homeowners of their faith in contractors, with legal ramifications that can close an established company.
I’ve learned some lessons. First, this can happen to you. Sure, we all strive to be professional and experts in our field. We can cross all our T’s and dot our I’s, but things can slip through the cracks — no pun intended.
I talk to contractors who say, “I would never be sued because I always make sure my clients are happy.” The client may not sue — but maybe the people who buy the house from your client will. That was true in the case I describe below. I don’t think this contractor was lackadaisical. I think he just missed a few key details and was let down on all sides.
So you have to be on top of your game — every step of the way.
Another lesson: Things are rarely black and white. We may want a clean, fair resolution, but these cases can get fuzzy. They often end in mediation, with an outcome that leaves everybody feeling victimized.
But it’s better than the alternative — going to trial, where you may be required to convince 12 people that you are not at fault, when they don’t understand a single thing about construction. And costs escalate fast.
I think the case below illustrates how difficult it can be to assign fault. Let me tell you the tale about a real pool construction defect case. The names have been changed to protect the innocent.
Setting the scene
The day was hot and sunny, with the kind of wind that makes you wish you had a cold drink to wash down. The vessel lay lifeless and broken on the floor. Cracks stretched from side to side on the shell, and the pool listed a few degrees downslope, where a retaining wall exists. The shell is half full or half empty, depending on your perspective in life. The glass tiles are cracked, delaminating off the corners, with efflorescence and white mineral buildup coming through the spa skirt wall.
A hedge of ficus trees looms over the top of the retaining wall. The pool has no concrete deck around it, only dirt and dead grass coming up to the pool and spa on all sides.
The disenchanted homeowner — we’ll call him “Surly Joe” — stood looking over his pool, fretting that he needs to leave the hose on full-time in order to keep water in it.
It had started out as a real feather in the pool contractor’s cap. It was adorned with several waterfeatures — deck jets, fountains, a spillway at the deep end. The builder even photographed it and put it on his website.
But two years later, the pool shell was no longer salvageable. After it had cracked and could no longer hold water, the leakage exasperated the issue by causing the clay soil to expand. The homeowner attempted to reach the contractor but couldn’t find any resolution. He found communication to be difficult, so he brought in the lawyers.
So who’s fault was it anyway?
Cast of characters
Surly Joe, the current homeowner, had bought the house from “Flipper McGee,” who acted as an owner/builder on the property. Flipper had put in a retaining wall and hired the pool contractor, who we’ll call “Charles in Charge.”
Delving into the details of the case, we learned that soils reports had been performed post-mortem. The geotechnical engineer determined that the soil below the pool was poorly compacted.
In a deposition, we learned that the excavator — “Clay Digger” — admitted he was responsible for the compaction of the pool but actually didn’t compact the pool bottom. So the pool could have settled, and the lethal cracks may have been a result of poor compaction by Clay Digger.
Or were they?
Meet the gunite contractor, “Sandy Pockets.” As is common in evaluating failed pools, a series of concrete cores were pulled from the gunite shell and sent for testing. The test results showed the gunite compression strength at an average of only 1,200 lbs. — half the minimum requirement specified by the engineering plans and just over one-fourth of the recommendation from the American Concrete Institute. Sandy Pockets did not properly perform his job. Clearly, the half-strength gunite was inadequate and caused the pool shell to fail.
Or did it?
Perhaps “Steely Dan,” the structural steel contractor, was the culprit. A review showed that a freestanding deck detail should have been followed, since there was no decking around the pool. But the pool contractor failed to share that information with Steely Dan. Because the pool is a zero-deck installation with grass going right up to the coping, it should have had six bars of steel, instead of the three it actually had. A half-strength bond beam could certainly cause a crack in the pool shell and the failure of the project.
Or maybe not.
What about “Flipper McGee,” the previous homeowner? He was responsible for the 6-foot-tall retaining wall that created a level pad for the pool. His guys may have worked hard, but none had a contractors license or bothered to pull a permit. That retaining wall was constructed without any hydrostatic relief, and the soil that was backfilled up to the retaining wall was poorly compacted.
Not only that, but we learned from the soils report that 50% of the pool sat in native soil, while the other half was built into the soft fill that Flipper McGee had placed. Clearly the illegal retaining wall and poorly compacted soil caused this pool failure.
Or did it?
How about “Charles In-Charge,” the pool contractor who was overseeing the entire project? While he hired licensed professionals and had a reasonable expectation that they would correctly execute, he failed to consult a civil engineer, order compaction tests, or adequately supervise the workers. Is he to blame for the project failure?
What do you think?
As I mentioned, these cases are never black and white. In this extreme instance, each of the players I mentioned could have single-handedly caused the pool to crack. Combined, it was a sure-fire disaster.
In the end, they were able to settle the case before trial. Nobody was happy — not the homeowner or any of the contractors who had to divvy up for compensation. But that’s what mediators consider a success.
As an experienced expert witness, the mediator asked me how the liability should be shared. What do you think? How would you have distributed the liability?
