Septic testing failure lawsuit:

A defective septic test and bad septic inspection led to a lawsuit after property buyers discovered, 24-hours after moving in to their new home, that the septic system was not functional, having a totally blocked septic tank and a completely failed leach field.

The text demonstrates how to prove that a septic inspection and dye test were improperly conducted, failing to have even a chance of protecting the client from the expensive surprise need to completely replace a septic tank and leach field.

Septic Failure Lawsuit

Litigation Addresses Inadequate Septic System Inspection & Testing that Failed to Detect a Non-Functional Septic System

Plaintiff's Complaint: Septic Test Was Not Properly Performed

[home inspector's name deleted] performed a septic dye test, erred by putting water in laundry sink in the basement; ran 125g water, reported system in satisfactory condition;

Buyer later found no proper system installed, had to install a "trans vac" pump up mound system, for $16,000, total damages $28,000.

Area reported to be known for poor drainage, making mound system requirement likely.

Our photo (left) shows a laundry drain (photo left foreground) where septic dye tablets (not enough of them) were placed during an improper septic loading and dye test.

In the distance (photo center and right) can be seen the house main drain.

It is possible that the washing machine drain does not connect to the distant sewer line. Fixtures emptying into the sewer line, not the washing machine drain, should be used when performing a septic loading and dye test.

Approach to Analysis of the Septic System Test Complaint

1. Home inspection stanards such as the ASHI Standards of Practice exclude requiring Septic test but there are exi
2. Define existing professional standards for performing visual + dye test
3. Claim basic error made: test in laundry sink - no evidence. connects to septic

Our photograph (left) shows a home made septic tank that is packed with solid waste

It is likely (not certain) that an adequate septic loading and dye test would manifest septic system failure as a backup or breakout during testing of a septic system such as this one.

But an incompetent septic loading and dye test denies even a chance of disclosing the problem conditions for which the test is purported to test.

Assertions Made by the Plaintiff Regarding Inadequate Performance of a Septic Loading and Dye Test - Errors of Omission and Commission

1. Visual inspection during septic test:
   
   Common practice includes visual inspection of yard and interior and plumbing to address the pertinent questions, + dye, volume of water, reinspection for breakout. Pertinent questions include attempting to assure that drain used for test drains into the septic fields.
2. Proper water quantity during septic test:
   
   An error can be inferred if dye and loading water volume were not introduced into the proper drains. If this is the case, whether or not the proper volume of water was run is probably moot because the wrong drain was used. The report indicated that insufficient water was used.
3. Tracer dye quantity during septic test: 
   
   A septic test procedure error also can be inferred if the inspector did not use sufficient quantity of septic dye to provide color in effluent IF effluent was observed at or near the property ground surfaces.
   
   If no effluent appeared during the test, the quantity or concentration of septic dye used is moot. In the litigation discussed here the inspector used septic dye tablets at a level that was inadequate to produce a visible result, had water and septic dye been placed into the proper drain.
4. Soil characteristics and septic testing:
   
    is possible that knowledge of area soil characteristics, age of property, local building conditions and practices, might have served as a basis for caution or warning, regardless of whether or not dye was found at the surface. Such warnings are at the discretion of the inspector.

Questions In Determination of Adequacy of Septic Test Performed

1. Is there visual evidence in basement of the subject property that the laundry sink does not or might not drain to same location as main house sewer line? [Yes-arrangement of piping; height of exit of septic drain above sink]
2. Does client recall and can testify that dye was introduced only in drywell?
   • How much water was run?
   • Over what time? (125 g in 1/2hr is about 4.2 gpm which is possible from a reasonably strong flow at a single sink faucet. Typically 3-4 gpm for a kitchen sink, or single tub, depending on pump pressure switch settings, control valve settings, clogged piping, type of pump, etc.)
   • What type of well and pump equipment are provided? Shallow well, deep well, submersible pump vs 2-line jet pump?
   • At what pressure does the pump cut in and out, what type of holding tank is installed, what is the average water pressure in the house, what is the measured flow in gpm from the faucet used to perform the test? only. 125 gals in 1/2 hr is possible and reasonable, but a bit less than the usual volume of water run for septic tests.
3. Would a conventional and properly conducted test absolutely, probably, possibly have revealed a failed system?
• what conditions led to discovery of failure (number of occupants, level of usage, time until failure noted after initial occupancy)?
• exactly what equipment was discovered when the old system was excavated?
• can one reliably infer from what was discovered that question 3 is pertinent and that q3 can be answered?

Court Hearing Notes regarding inadequate septic testing complaint

1. Water was run into laundry drain (photo shown above), nowhere near and no visible connection to main house drain; photo details strongly suggest laundry drain does not or may not drain to septic - wrong place to test. No dye was used.
2. Septic report indicates dye was used etc - in boilerplate. Minimal info. provided by report
3. Home inspection report - a checklist form - completely blank plumbing section - suspect inspector was distracted by something and just forgot this topic - does not meet ASHI standards for plumbing inspection.
4. Septic failed immediately on occupancy - probably less than 200g water run.
5. Subsequent discovery on excavation indicates no functioning septic - sludged tank, no leach lines except. one pipe, completely root-filled. Strong possibility that a proper loading and dye test would have failed;

7/3/95 Note to File: arbitrator found for the plaintiff in full, holding that a proper septic loading and dye test had not been not performed and the protection contracted-for was not provided.

Key in this case was that the plaintiff did not attempt to prove that a properly performed septic test would definitely have discovered the failed septic system, although given the totally impacted septic tank a proper test would almost certainly have done so.

Rather the plaintiff argued that the contracted-for protection was not provided. In other words, the plaintiff was denied even the opportunity to possibly discover that the septic system had failed because the "septic test" performed by the inspector was completely incompetent.

© 2017 - 1984 DF. Citation of this article by reference to this website and brief quotation for the sole purpose of review are permitted. Use of this information at other websites, in books or pamphlets for sale is reserved to the author. Technical review by industry experts has been performed and comments from readers are welcomed. Contributors are listed at the end of each article.

This article is part of our series:

SEPTIC SYSTEM INSPECTION & MAINTENANCE COURSE an online book on septic systems.

SEPTPROB.TXT - Excerpt from DJ Friedman arbitration file

These pages are part of

our SEPTIC DYE TEST PROCEDURE for testing septic system function. Technical review by industry experts has been performed and is ongoing.

Septic Failure-Related Illness or Litigation Research

• Alhajjar, B.J., G. Chester, and J.M. Harkin. 1990. Indicators of chemical pollution from septic systems. Ground Water 28:559-568.
• Canter, L.W., and R.C. Knox. 1985. Septic tank system effects in ground water quality. Lewis Publishers, Inc., Chelsea, MI. 336 pp.
• Law, UIdaho. "Kootenai County v. Harriman-Sayler Appellant's Reply Brief Dckt. 39071."
• Rahn, Perry H. SICKNESS CAUSED BY SEPTIC DISPOSAL SYSTEMS IN THE BLACK HILLS [PDF] In Proceedings of the South Dakota Academy of Science, vol. 90. 2011.
  Abstract:
  
  More than ten thousand onsite wastewater systems exist in rural areas of the central Black Hills. Numerous septic system failures have been observed; this typically includes effluent reaching the surface caused by bedrock beneath the drainfield. High water table areas may result in effluent backing up into residences.
  
  Ground water contamination from septic systems, particularly in dense subdivisions, includes increased nitrate and coliform and other fecal bacteria concentrations. Sickness (gastro-intestinal distress, a form of dysentery) has occurred at several locations in the Black Hills, but firm documentation is available about only two locations.
  
  On August 30, 1986, 135 people got sick during a “Volksmarch” after drinking water from the Rockerville Campground well. On June 19, 1995, 35 Girl Scouts got sick at Camp Paha Sapa from the campground well water. Both sickness events occurred from the high use of a well near a septic system where there was a short (~1 day) travel time from the drainfield to the well through fractures in the Precambrian metamorphic bedrock. Both events involved campgrounds where visitors drank untreated well water.
• Sawyer, J.F. 2006. Water quality near wastewater treatment systems in alluvial and karst hydrogeologic settings, Black Hills, South Dakota. PhD Thesis, South Dakota School of Mines and Technology. Rapid City, SD.197 pp.
• Schwickerath, P. 2004. Analysis of fecal coliform bacteria in Spring Creek above Sheridan Lake. M.S. Thesis. South Dakota School of Mines and Technology. Rapid City, SD. 89 pp.
• Sikora, Vincent A. "Duty-to-inform, discrimination, and septic-system issues." Journal of environmental health 66, no. 4 (2003): 30.
• Sikora, Vincent A. "Lawsuits versus regulations and penalties: implications for health departments.(Legal Briefs)." Journal of environmental health 65, no. 4 (2002): 24-26.
• Vogel, Michael P. SEPTIC TANK INSPECTION AND TROUBLE-SHOOTING [PDF] (2001). Montana State University Extension Service, MT 199403 HR Revised 8/2005
  Excerpt:
  Conducting a septic system evaluation prior to sale or purchase of property protects both the buyer and the seller. Most importantly, an evaluation helps to protect the value of the buyer’s investment by ensuring that the system is functioning properly—and will continue to do so. It also protects the buyer from potentially tremendous costs of system repair or replacement soon after the sale.
  
  For a seller (and realtor, too), a septic system evaluation will minimize the possibility of unknowingly selling a house with a defective or failing system, and could help avoid possible lawsuits that might arise as a result. A properly functioning system can also be a good selling point and enhance the value of the house.

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Reader Q&A - also see RECOMMENDED ARTICLES & FAQs

 

On 2021-03-30 14:48:48.723380 - by (mod) -

@Crazy,

Watch out: You certainly are describing a rats nest of problems including building and health code violations, unsanitary conditions, and actual health hazards to you and other home occupants, as well as possible health hazards to neighbours and of course contamination of the environment with sewage.

Drinking, or otherwise using unsanitary water is also of course a potentially serious health risk for everyone.

Perhaps your local health department can offer you some advice.

On 2021-03-30 14:28:44.422315 by Crazy

I live with a family member. I pay no rent technically. However, I did agree to "use a woman's touch" around the home since it's an older 80 year old man and his son, 41. The son pays part of the power, I buy $300 worth of groceries a month. I don't work due to health issues that arose during my stay here. I didn't have insurance & couldn't afford a doctor visit. There's admittedly a crushed septic septic line, the washer drains into the woods, not the septic because they said it filled the tank too quickly. There's another drain from the house that was clogged that goes from the base,end to the yard right beside the well cover. We have to put a light in the well cover to keep the pump from freezing during winter. However, I'm ignorant to technical issues and skeptics completely. When the son and I can't afford to pay to pump the well, it just doesn't get pumped. The homeowner refuses to do have it done and has the means to do so. So, then we are left to shower here. I had a water test sent in I found at Home Depot and they called back to say it had elements and solids and further testing by a technician was required. The homeowner refused. Said buy bottled water. But we cook and wash clothes and dishes with it and make coffee. I stay sick and have had skin issues etc. and everyone acts like I'm mentally challenged. So I started reading and studying and I find that we probably have septic drainage reaching our well area. What the hell do I do? My hands and skin still have brownish residue on my white towel after showering and I'm told it's oily skin. Oh, and the homeowner goes and showers elsewhere. Supposedly unbeknownst to us, but I know.

On 2021-03-11 17:57:18.686868 - by (mod) -

@Cheryl, you will need to get estimates of the cost to repair and then take that information either to your lawyer or to small claims court

On 2021-03-11 17:13:27.271937 by Cheryl

Had land with functional septic system. Removed mobile home. Roll off/ trash truck, disregarded no trust passing sign, drove on property crushing the septic system. Contracted a company to replace crushed tank and was advised by company to have drainage field inspected as well. They verbally agreed to fix drainage system if need.
Company came out replaced the tank but did nothing for drainage field. They wouldn’t say why. Discover via camera that drainage field crushed. Got another company - perk test needed. Perk test failed. Can’t put home on property. What legal action can I take and what type of lawyer. Thank you.

On 2021-03-08 17:29:23.990605 - by (mod) -

I agree with you that I smell a rat as well.

Punching multiple holes in the septic tank is something someone would do to try to cover up a septic drain field failure by permitting effluent to seep out of the tank into the ground around it instead of being sent to the drain field.

However septic inspector examining the tank would not necessarily see those holes if the tank was filled and covered them. You wouldn't see them until the tank was pumped.

On the other hand if a septic system using as bad failure as you described, it's possible that if sufficient test volume of water had been run during a proper septic inspection and test the problem might have been discovered.

So you need to examine the septic inspection test description to see if it was reasonable in its application and performance.

I would focus more on what's needed now to repair and rebuild the system.

On 2021-03-08 16:41:08.760974 by Gesenia

We bought a home a year and a half ago. During escrow we learned the home was on septic. We had the seller get the system inspected and pumped. I have a signed inspection form from a septic service company. We were told based on size of tank and number of people in the home we would simply have to service it (pump it) 2-5 years. Within the year and half we’ve been in the house we ran into plumbing issues come to find out our tank is full and on the verge of overflowing.
This seemed strange considering we were told we wouldn’t need to pump for 2-5 year. There’s only 2 people in the house so ideally it would need service closer to 5 years
We did some digging at the septic location an noticed a hole in the tank. I called the company who inspected it asking how this could be missed. They came out to take a look and helped dig out further to noticed multiple holes and the wall within the unit (separates liquids and solids). Was completely busted and unattached. I again asked how this could be missed. The owner came clean and said it looks like the damage was done during their servicing the unit during escrow and inspection.
If the septic company doesn’t do the right thing and repair their damage OR chooses to charge us to repair, what legal actions should we take and what are the chances is goes in our favor?

On 2020-11-28 15:44:32.497613 - by (mod) -

Rina

As I'm not an attorney and I also can't possibly know your local real estate laws, not even knowing where you live, I can't answer a legal question with any confidence about removing someone else's septic tank on your property. But it seems very basic to me. If it's your property septic tank located on it is certainly liable to be removed by you as a property owner. Furthermore there could be life safety hazards if a septic tank anywhere including on your property has not been properly maintained and worse as an unsafe cover as if someone Falls in their likely to die very quickly. So it's also a liability for you. Good night if you know whose property is served by the septic tank you would tell them you're going to remove it. If you don't know whose it is you could treat us as an abandoned tank on your property which should be removed or filled in for reasons of safety.

On 2020-11-27 22:33:46.494257 by Rina

Hello hoping i got answer here. Thiers a septic tank in my property that is not mine. If i remove it. Is it a damage of property?

On 2020-07-22 12:18:55.954586 by Sandra Bush

We had a company out in january. They were to pump the tank and inspect it for any damage. They are PMSA regulated. They came. Pumped it. Looked over the tank. We put our home up for sale in July. Buyers came in and did septic inspection. They found multiple cracks in tank and the baffles damaged and leaking. They said this is well over a year old. Now the buyers are debating backing out on the sale of the home. Do I have a case against the septic company? We would have dealt with this in January and not waiting til a buyer was here. They are costing me the sale of my home and they lied to us on their paperwork.

On 2020-05-28 20:13:29.268064 - by (mod) -

Bruce:

Apologies but the real answer to your question is a legal one, for which you will need to consult an attorney, preferably a local one who handled your purchase and knows the purchase terms.

My OPINION is no, you probably don't have recourse, as the deal is done, signed, paid, and because in real estate the responsibility of due diligence is upon the buyer. An exception might be if you could prove a charge of deliberate fraud.

Aside to other readers:

Bruce's upsetting experience with a seller-repaired septic system underscores a point we make often here at InspectApedia.com:

When buying a home,

IF there is a substantial defect, and

IF the seller agrees to bear all or part of the cost of remedying the defect

THEN

it's a smarter deal and most fair to BOTH seller and buyer for the two to agree on a price and for the seller to give the
buyer a suitable allowance at closing.

My reasoning is that

For the buyer, she or he can be assured that the job is done "right" with no economizing shortcuts made by someone who has no longer an abiding interest in the property and who wants to get out at as low a cost as possible, and the buyer also will have recourse with the contractor if there's later a failure, since the contractor worked for buyer, not seller. Conversely, if the contractor worked for the seller the contractor will often say to new owner: sorry, you were not my customer.

For the seller, giving a fair allowance for the repair avoids the risk of being sucked into the black hole of greater than anticipated costs as new snafu's are discovered during the agreed-on repair, and it speeds up the transaction for both parties.

The only exception I make to this general guidance is for something that is

Unsafe and an immediate risk to people at the site or buiding

or

Causing rapid expensive damage

or

Whose failure prevents any normal buyer from obtaining mortgage financing

On 2020-05-28 16:44:45.354659 by Bruce

We purchased a house in 2015. during inspection it was discoved there was no leach field. Previous owner installed an up to code complete system (Enviro) it is now April of 2020 amd the field is starting to show signs of failure and the pipes to the d box are holding water which indicates a bow in the pipe. Do I have any recourse to have the original installer fix the problems?

...

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