The trial court granted summary judgment to defendant Tanner d/b/a TLC Home Inspections (Tanner) in the underlying action for negligent inspection of the home the plaintiffs, David and Janie Red-ding, were purchasing. The Reddings appeal.
In reviewing the grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996). Viewing the evidence in favor of the Reddings, as nonmovants, seeLau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), it establishes that the Reddings entered into a Purchase and Sale Agreement for the purchase of a house owned by Marguerite Thurmond. Thereafter, Redding contacted Tanner by telephone and hired him to perform a visual, structural, and mechanical inspection of the house.
On August 26, 1995, Tanner went to the property and spent approximately three hours inspecting the house. The house had one story extensions on each end and was two stories in the center section. The Reddings, as well as Thurmond, were at the house during the inspection. When Tanner arrived, he had no ladder with him and was asked by Redding how he was going to inspect the roof area. *251Tanner had binoculars and told Redding he would use those for the roof and eaves inspection. After the inspection, Tanner sat down with the Reddings and Thurmond and orally described the results of his inspection, including areas of rotted wood on the home’s exterior and other minor problems. No mention was made of the cracks in the gables. Although Tanner requested payment that day, Redding did not have a check. Tanner agreed to give the written report to Jones, the realtor, which he did later that same day, and Redding agreed to mail Tanner a check.
On October 21, 1995, Redding got on the roof of the home to clean his gutters and noticed the substantial vertical cracks in the brick covering the gables. It is the $27,000 cost of repairing these cracks as well as some water damage in a bathroom which was sought from Tanner in this suit.
1. The trial court premised its grant of summary judgment on the existence of the waiver of liability clause in the written report. Such report contained three pages of “Terms and Conditions of the Inspection,” including the following: “This inspection and report does not cover all aspects, even of structural conditions. Neither TLC Home Inspections nor the inspector shall be liable for mistakes, omissions, or errors in judgment. This limitation of liability shall include and apply to all consequential damages, . . . and property damage of any nature. This company and the inspector assume no responsibility for the cost of repairing or replacing any unreported defects or conditions.”
The trial court relied upon Brainard v. McKinney, 220 Ga. App. 329 (469 SE2d 441) (1996), which is not binding precedent as it is physical precedent only. Furthermore, it is inapplicable to the present case because therein, at the time of the inspection, the home purchaser had signed a written contract which contained a waiver clause. While Brainard held that such a clause is enforceable as part of a written contract and not void as against public policy, there is no dispute in the present case that the written document was prepared after the inspection and the oral agreement between Redding and Tanner that it be done. Further, in this case, the document was never signed by Redding. While Tanner deposed that he told Redding in the telephone call that his liability was limited to the $200 cost of the inspection, Redding disputes that and summary judgment cannot be premised on this disputed fact. Therefore, summary judgment was improper.
2. The dissent relies on the doctrine of avoidable consequences, finding that because Redding knew that Tanner did not go onto the roof to inspect the gables, he failed to exercise ordinary care to protect himself from Tanner’s negligence. However, this presumes that the owner knew that it was necessary for the inspector to go up on the *252roof to inspect the roof and eaves notwithstanding the expert’s statement that he would be able to inspect the roof with his binoculars. The Reddings hired Tanner because of his expertise in inspecting homes. The Reddings were entitled to rely upon the expert inspector to do that which was necessary to properly inspect the property.
Under the dissent’s analysis, an individual who hires an expert to perform a home inspection is barred from recovering from such expert for a negligent inspection where the individual happened to be on the premises when the inspection was performed. The lack of expertise by the person employing an expert is the very basis for the employment. The dissent would find that such a person is charged with knowledge of what the expert must do to accomplish the inspection for which the expert was hired, and that a non-expert cannot rely upon the representations of the expert inspector that he has done what is required to appropriately complete the inspection.
Because genuine issues of material fact remain, the trial court erred in granting Tanner’s motion for summary judgment.
Judgment reversed.
McMurray, P. J., Pope, P. J., Beasley, Johnson and Smith, JJ., concur. Andrews, C. J., concurs in part and dissents in part.