Landlord hired an unlicensed repairman, a friend,  to replace an attic
hot water heater. The friend sent two employees that were unlicensed
and without a building permit.  The employees dropped the hot water
heater from the attic and did property damage to the home and damage
to personal property of the tennant.
The landlord will not mediate, nor negotiate for compensation.  The
employer does not have a bonded company.  The employer will not accept
monetary responsibility for the .$3,000.00 damaged antiques of the
tennants.  After a notice for inspection sent by tennant, neither the
landlord, nor the employer came on the designated date, nor called to
arrange a different time.
Whom do I take to small claims court, the landlord who hired the
friend, the employer who sent the two employees, or both.
Crystal Papillon

---

Request for Question Clarification by morningstar2000-ga on 01 Sep 2002 12:56 PDT

Dear Chrysse - 
   What state do you need the information for?   Each state has a set
limit on how much you can sue for in Small Claims court.  Most are
$2000.00.  Also are you looking to sue for replacement cost or repair
cost?   With antique's and collectibles value is lost if the item is
repaired.  So again are you looking to add the loss of value into the
case?  Ie.. what kind of compensation are you looking for?

 Regards,
   morningstar

Hello Crystal, and thank you for your question.

What a frustrating position to find yourself in. How sad it is that
your landlord could not be bothered to hire bonded and insured
professionals for rental property repairs.

*DISCLAIMER*
Of course, this cannot replace advice received from a qualified legal
representative. See "Additional Resources" below for contacts.

Most Texas leases, from the Texas Apartment Association (TAA) or the
Texas Association of Realtors (TAR) will have wording similar to:

"The owner shall not be liable for any damages or losses to person or
property caused by other residents or persons. Owner is not liable for
personal injury or damage or loss of resident's personal property,
furniture, jewelry, clothing, etc. from theft, vandalism, fire, water,
rain, storm, smoke, explosions, sonic booms, or causes whatsoever
unless the same is due to the negligence of owner or owner's
representative."
http://www.texastenant.org/tenant.html#anchor223491

It is my opinion (see disclaimer above) that your landlord is
responsible for your personal property damage, because the damage is
due to the landlord's negligence. The repair company, if not bonded
and insured, is the landlord's representative, or guest, on the
property and therefore the landlord is ultimately responsible for that
guest's actions. So the short answer to your question is that you
should file your complaint in small claims court with the landlord.
Texas Tenants Rights (Texas Attorney General)
http://www.tenant.net/Other_Areas/Texas/tenants.html

Such a loss would have been covered by renter's insurance. If you have
expensive property in a rented residence, low-cost renter's insurance
can reimburse you for the fair market value or replacement cost of
your belongings that are damaged due to a fire, water, or other damage
such as you have experienced here.
Texas Department of Insurance: Renters Insurance
http://www.tdi.state.tx.us/consumer/cbo43.html

Whether your property damage is a small claim or not, going to court
should not be your first step. "Initiating a law suit should be
considered as a last resort to be used only after all possibilities of
negotiation have been exhausted." Counselling and mediation services
exist to provide you and your landlord with low-cost alternatives to
lawyers and courts. Should your case result in the need to file a
court case, here is an excellent article to help you prepare.

Going To Small Claims Court (Austin Tenant's Council)
http://www.housing-rights.org/small_claims.html


Additional resources:

The Austin Tenants' Council (512-474-1961) 
Legal Aid of Central Texas (512-476-7244) 
The University of Texas Student Attorney (512-471-7796) 
The Attorney General's Consumer Protection Division (512-463-2070) 
The North Texas Tenants Council (214-828-4244) 

Texas Property Code: CHAPTER 92. RESIDENTIAL TENANCIES 
http://www.capitol.state.tx.us/statutes/py/py0009200toc.html

Texas Apartment Association: Need help? *click on your city*
http://www.taa.org/renters/RentersHelp.php

Texas Landlord Tenant Laws 
http://www.rentlaw.com/texaslandlordtenantlaw.htm

Texas Tenants Advisor FAQ
http://www.texashousing.org/TT/misc.html

NOLO: Law for all
http://nolo.com/index.cfm


Search strategy:
texas (negligent | negligence) landlord property damage
texas "small claims" landlord tenant


I hope you find this answer helpful, and that the situation is
resolved to your satisfaction. If you require clarification of any
part of this answer, please don't hesitate to ask.

Regards,
mother-ga

The answer was comprehensive and offered advice for several avenues.
The statement that this was not offered by a qualified legal
representative made it seem implausible.   However, redemption was
made by quoting the exact statutes, laws, and documents that were
required to assess liability.

Thanks
Chrysse

The disclaimre is perhaps necessary, given your state's emphatic
enforcement of its prohibition against the "unauthorized practice of
law", but beyond that it would be difficult for a researcher to
provide the same type of analysis that could be offered (perhaps even
off-the-cuff) by a Texas attorney.

What you describe is a basic "negligence" claim. A cause of action in
negligence arises when one person has a duty to another, that duty is
breached (typically through inadvertence or carelessness), and damages
are caused which are a reasonably foreseeable consequence of the
negligence conduct. A classic example is a car accident - the driver
who causes the accident owes a duty to other drivers to conduct his
car in a safe manner. It is foreseeable that negligent acts while
driving can cause accidents and injuries. Thus, a person who causes a
car accident and injures another driver is subject to being sued for
his negligence.

In the situation you describe, it is possible to argue negligence on
the part of various actors:

* The landlord was arguably negligent in selecting the "contractor"
hired to perform the work. It is arguably reasonably foreseeable that
when you hire an unlicensed contractor you will get substandard work,
and that damage might be caused to the property of tenants.

Please note that there are practical considerations that come into
play when suing your landlord. For example, if you are a
month-to-month tenant, or will soon be renewing your lease, your
landlord may choose to end your tenancy.

* The workers were negligent in their conduct, dropping the hot water
heater. It is foreseeable that dropping a hot water heater will damage
property on which it falls. The workers owed a duty to the landlord
and tenant to perform their work in a safe and responsible manner, so
as to protect their safety and property. Dropping the water heater
breached that duty, caused damage, and creates liability.

* The "contractor" was negligent in failing to provide adequate
supervision (and possibly training) of his unlicensed, perhaps wholly
unqualified, workers.

The "contractor", as the employer of the workers, is also subject to
the doctrine of "respondeat superior", a latin phrase meaning "let the
master answer". When an employee, acting in the course and scope of
his employment, negligently causes injury to a person or to property,
the employer is typically "vicariously liable" for the employee's
negligence under this doctrine. That means, even if the employer
himself cannot be proved negligent, he remains fully liable for the
damages caused by the negligent employee. (If you sue the
"contractor", be sure to mention "respondeat superior" as a theory of
his liability. You should also be sure to mention that he is
unlicensed, and did not obtain a permit.)

Your strongest case in negligence is most likely against the
"contractor" and his workers.

Please note, also, that in small claims court you will have to prove
your damages. To prove damage to an antique, it will be necessary to
have at the very least statements (preferably sworn) from qualified
individuals attesting to the damages. If possible, you should consider
having a live witness (perhaps an antique dealer) testify about your
damages.

Please note, also, that you should be as specific as possible in your
legal claims, even in small claims court. Lawyers are used to seeing
complaints broken down into numbered paragraphs, with some level of
care taken to mention all of the elements of the stated civil cause of
action.

The following resources are more complicated than you need, but they
may nonetheless be helpful:

James Publishing provides a nice overview of legal pleadings on its
website, in PDF format. Please note that pleadings in small claims
court do not have to be as complicated as this (meant for lawyers
filing complaints in a regular court) may suggest:
http://www.jamespublishing.com/pdf/sf.pdf

A sample of a complaint in negligence for an automobile accident
(drafted for Tennessee) can be found on the Southwest Tennessee
Community College website:
http://faculty.stcc.cc.tn.us/waterst/2035/2035/complaint.htm

Good luck,

- expertlaw