who has the primary burden of proof?

[Rabelais]

California:

A company installed a sump pump at an individual's home. After the installation, the customer signed the contract in an acceptance of work performed section... "I find the service and materials rendered and installed in connection with the above mentioned, to have been completed in a satisfactory manner..." The 'above mentioned' refers to a section that has a task with a description of 'installation of new sump pump'.

Later the customer had the pump removed by another contractor and claimed that the pump was not new. Now the customer is threatening litigation unless the company proves that the pump was new or provides a full refund.

B/c the serial number was not noted (the company's mistake), the company only has the supply house invoice, internal purchase order records, the acceptance of work performed signature, and two employees sworn statements that the pump was new when installed.

Can this be anything but a small claims issue and does the company have to prove that the pump is new or does the customer have to prove that the pump is not new?

*The legal advice should be tailored to the company and know that the company did install a new pump and is not trying to find some legal loophole.

 

[JETX]

The burden of proof in litigation falls on the party bringing the complaint (Plaintiff, you in this case). You would have the burden to prove your claim on the pump.

If you are the dealer that sold the pump, you could simply show your documentation of the pump purchase and its condition.

If you are the customer, then you would have to provide some support for your claim that the pump is NOT new as claimed. This might be done a couple of ways:
1) Running the serial number back to the manufacturer and records showing the pump was sold and used elsewhere, or
2) Subpoena'ing the installers records to show purchase of the pump (this can only be done after filing an action).

 

[Rabelais]

burden of proof

California:

Thank you Halket, very informative.... Just a couple followups:

1) As the contractor, if subpoenaed, all we would be able to show is a supply house receipt that has the purchase price, model, time, purchase order, and the technician's signature that picked up and installed the pump. I'm just worried b/c we do not have record anywhere of the serial number and the customer seems to think that if we do not provide them with the serial number, we owe them a full refund. Can this be correct?

2) Does this seem like a small claims issue, or could they hire a lawyer and take us somewhere else?

 

[JETX]

The fact that your records don't show the serial number really shouldn't be of consequence... unless he has proof (manufacturer records, etc.) that show the same serial number as having already been used or registered elsewhere.

Does your receipt (from YOUR supplier) show a serial number?? If so, it would be a very simple matter of confirming the same number with the customer and then sending him a copy of your receipt (with pricing removed). If your receipt doesn't show a number, contact your supplier and see if they have records of serial numbers that you purchased. If they don't, then you may need to ask if they have a record of serial numbers that they received and so on up the line. It is somewhat hard to believe that SOMEONE wouldn't have a serial number that matches the customers.

Your customer is not required to limit his actions to small claims. He can file it in any court that has jurisidiction, including Supreme court.