Burbach v. Radon Analytical Laboratories, Inc.

652 N.W.2d 135, 2002 WL 2022571
CourtSupreme Court of Iowa
DecidedOctober 25, 2002
Docket01-1566
StatusPublished
Cited by6 cases

This text of 652 N.W.2d 135 (Burbach v. Radon Analytical Laboratories, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burbach v. Radon Analytical Laboratories, Inc., 652 N.W.2d 135, 2002 WL 2022571 (iowa 2002).

Opinion

NEUMAN, Justice.

This appeal concerns the liability of a home relocation inspection company to the buyer of a home for an allegedly negligent inspection report relied upon by the home buyer in making the purchase. The district court determined, on summary judgment, that the home inspection company owes no duty to third persons who rely to their detriment on the company’s repre *136 sentations. We reverse and remand for further proceedings.

I.Background.

American Escrow and Closing Company (American Escrow), an employee relocation company, hired the defendant, Radon Analytical Laboratories (Radon), to perform a relocation inspection on a home in Dubuque, Iowa. The inspection was performed in February 1999 by Michael Davis, a Radon employee. The written inspection report was then submitted to American Escrow.

Subsequently, in June 1999, plaintiff Daniel Burbach executed a written purchase agreement with American Escrow to purchase the home. The agreement gave Burbach ten days to obtain a satisfactory inspection of the premises. Rather than hire an independent inspector, Burbach personally inspected the premises. In addition, Burbach received from his realtor, and relied upon, a copy of the final written inspection report prepared by Radon.

This dispute arose when Burbach discovered his home was covered with Louisiana-Pacific Innerseal Siding (L-P siding), a siding widely regarded throughout the home inspection industry as defective and known to be the object of a class action lawsuit. 1 It is undisputed that Radon was aware of these problems and the pending lawsuit prior to 1999. However not all Radon employees were trained or familiar with the L-P siding defects. Davis, an untrained employee, failed to identify the siding as “L-P siding,” identifying it instead as “wood” siding.

Burbach filed this action against Radon seeking damages for its negligence in performing the inspection and its failure to disclose structural defects in the home. 2 Radon subsequently moved for summary judgment, contending it owed no duty to warn Burbach of the defects. Over Bur-bach’s resistance the district court sustained Radon’s motion, concluding as a matter of law that Radon owed no duty to Burbach when it performed the home inspection. This appeal by Burbach followed.

II. Scope of Review.

Because this case reaches us on appeal from summary judgment, ■ we review for correction of errors at law. McComas-Lacina Constr. Co. v. Able Constructors, 641 N.W.2d 841, 843 (Iowa 2002). Summary judgment is appropriate only “when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citing Iowa R. Civ. P. 1.981(3) (2002)). In deciding whether summary judgment was appropriately granted, we are obliged to view the record in the light most favorable to the resisting party. Id. The burden of proof rests on the party seeking summary relief. Id. at 843-44.

III. Issue on Appeal.

Burbach argues on appeal that his reb-anee on Radon’s inspection report was foreseeable, thereby creating a duty of *137 care owed to him by Radon under this court’s holding in Larsen v. United Federal Savings & Loan Ass’n, 300 N.W.2d 281 (Iowa 1981). Radon counters that the case is more akin to Teunissen v. Orkin Exterminating Co., 484 N.W.2d 589 (Iowa 1992), where we rejected a similar allegation of duty with respect to a termite inspector. Radon contends no privity existed between Radon and Burbaeh, and Radon had no actual knowledge Burbaeh would rely on the documents when purchasing the home. The district court sided with Radon, holding that Radon’s duty ran only to American Escrow, the entity for whom the document was prepared. The court further noted even if the duty of care were broadened to include persons not in privity with Radon, the record failed to support Bur-bach’s claim that he was a foreseeable user of the report.

IY. Analysis.

The parties’ controversy implicates section 552 of the Restatement (Second) of Torts. The section provides in part:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

Restatement (Second) of Torts § 552 (1977) (emphasis added).

There is no dispute that Radon falls within subsection (1) of this Restatement section. Clearly Radon is “in the business” of providing relocation inspections “for the guidance of others.” The parties’ dispute is over the applicability of subsection (2). Pertinent to this determination is the commentary to section 552:

It is enough, likewise, that the maker of the representation knows that his recipient intends to transmit the information to a similar person, persons or group. It is sufficient, in other words, insofar as the plaintiffs identity is concerned, that the maker supplies the information for repetition to a certain group or class of persons and that the plaintiff proves to be one of them, even though the maker never had heard of Mm by name when the information was given.

Id. cmt. h, at 133.

In Larsen, this court relied on section 552 to find that a lender’s negligent appraisal report could furnish the basis for a negligence suit by home buyers who relied on the report to their detriment, even though the report was prepared for the lender, not the home buyers. Larsen, 300 N.W.2d at 287. Citing the language of the Restatement, we said liability “may extend to losses sustained by more than one person, as long as the supplier of the information (1) intended to supply the information to that person ...

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652 N.W.2d 135, 2002 WL 2022571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burbach-v-radon-analytical-laboratories-inc-iowa-2002.