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Construction inspector not liable for defamation




By Laura Mallory

Homeowners entered into a contract with a construction company for installation of a new roof for their Boston home.  A few years later, the homeowners hired another contractor to install an HVAC system.  During the installation of the new system, it was discovered that the underlying roof system was wet and leaking.  At the contractor’s suggestion, the homeowners hired an inspector to evaluate the roof.  The inspector determined that, at the time the roof was installed, it was installed over insulation that was soaking wet. Based on this report, the homeowners filed a lawsuit against the contractor that installed the roof for substandard roofing work. In response to the lawsuit, the contractor filed a claim against the inspector for defamation. The trial court found that because the statements made by the inspector were not statements of fact but rather of opinion, the defamation claim against the inspector was dismissed.  The contractor appealed.

Defamation analysis

In order for the contractor to be successful in its defamation claim against the inspector, the contractor had to prove that the inspector published a defamatory statement of and concerning the contractor, the statement was a false statement of fact, the inspector was at fault for making the statement, and the contractor suffered damages as a result.  Part of the defamation analysis is to determine whether the assertion made is fact or opinion.  To do this, courts must examine the statements in the context in which they were made, the circumstances surrounding the statements and consider all words, not just a particular phrase or sentence.  Additionally, weight should be given to cautionary terms used by the person publishing the statement.

The trial court found the statement to be opinion because the inspector was not there when the roof was installed, so the inspector’s statement that the roof must have been installed over soaking wet insulation can reasonably be understood only as an expression of the inspector’s professional judgment. The appeals court disagreed and explained that the audience, here the homeowners, could reasonably be expected to understand the inspector’s statement as one of fact, not just opinion, despite the fact that the inspector was not present when the roof was installed.  

Under Massachusetts law, a published statement will be deemed conditionally privileged if the publisher of the statement and the recipient have a common interest in the subject and the statement is reasonably calculated to further or protect that interest.  Here, the inspector’s statement involved a common business interest between the homeowners and the inspector, and it furthered that interest.  Moreover, the statement was made in the inspector’s professional capacity and only after the homeowners specifically requested the inspector to explain the source of the roof leak.  The appeals court explained that the exchange between the homeowners and the inspector is the type contemplated by the privilege.  While there are certain circumstances under which the conditional privilege may be forfeited, including acting out of malice, knowledge that the information was false, acting with reckless disregard for the truth or publishing the information unnecessarily, none of those situations were applicable here.  As a result, while the statement was in fact not determined to be an opinion, the conditional privilege shielded the inspector from defamation liability.



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