Definition Of Negligence
What exactly is the legal definition of negligence, and is a tenant considered negligent if they turn off the furnace before going on vacation in the middle of the winter? (Yes, the pipes broke, and the damages will run into the thousands.)
You should be speaking with your attorney!!!
You'll have a huge problem on your hands if you don't handle this properly and your insurance decides not to pay out!
Anyway, the a quick google search came up with this:
"failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not"
However, there is no clean cut definition as it relates to your situation. Again, you should be speaking with your attorney.
There is a difference between acting stupidly, and being negligent...
Did you instruct your tenant NOT to shut down the heat before leaving on vacation? Did you post a warning on the furnace shut off NOT to shut down during the winter months, or allow the interior temperature to fall below a certain level?
If you did take those precautions, and the Tenant still shut it down... then you may have something.
In addition to consulting a RE attorney ASAP, you should also look at the lease that was signed. The issue may not be one of negligence, but rather tenant's breach of the lease (and liability for consequential damages), and your right to accelerate rent, confess judgment--whatever.
Under tenant's duties and responsibilities, turning the heat off in mid winter would qualify as irresponsible. I've seen stupider tho...I would evict and sue in small claims.
My insurance agent has indicated that they will pay this claim but may pursue the tenant for the damages. This will limit my out of pocket expenses to $1000. There is still the issue of having a claim on my insurance, but I doubt there is much to be done about that.
My plan was to ask the tenant to pay $30 dollars per month until the $1000 was paid off and have show proof of renter's insurance.
It sounds, however, like many of you think this is not a clear cut issue of her being liable for the mistake.
Has anyone had any experience with this type of situation in court?
I wanted to avoid the extra expense, but I plan on calling my attorney tomorrow as it may be money well spent.
I am an attorney and I certainly don't think it's a clear-cut issue. Whether it's negligence is a factual issue and I wouldn't be afraid to argue on the tenant's behalf.
For example, you would (or the insurance company) have to show the pipe burst was actually caused by turning off the heater, but it may be possible to show that a pipe may have burst even if the heat was on. My evidence here is my own house. We had a pipe burst on Christmas morning at 9am ... and the heat was certainly on and working. We even had water running from 4 faucets to alleviate the pressure, but it still burst.
It sounds like what you have done is good. I'd make a claim on the insurance and let them worry about getting money back if they want. Yes, you can try to negotiate with the tenant and get your out-of-pocket expense back. I would try that too, but if I was the tenant, I wouldn't pay anything.
Wait a minute. Burst pipes in Tuscon? Something missing here.Pipes usually burst due to the expansion of water that occurs when it freezes in a fixed space. Letting water drip might answer the question of negligence, if you were the renter. At least you did that. Did the above tenant do that?
tbouman,
I too am wondering about burst pipes in Tucson!
To the previous poster, no, she did not let the water drip.
Anyway, Tbouman, was the story you told just an example of many things that could be argued in court, or was it the best one. I think because of the location of the break that it could be successfully argued that it was, in fact, turning off the furnace that caused the break.
The break did not happen behind a wall. The break happened in the shower control which is directly exposed to the air in the apartment. If the apartment had been even 50 degrees, the break could not have happened at this location.
Does this make any difference to you view that this is not a clear cut issue?