Ellis v. Robert C. Morris, Inc.

513 A.2d 951, 128 N.H. 358, 1986 N.H. LEXIS 299
CourtSupreme Court of New Hampshire
DecidedJuly 29, 1986
DocketNo. 85-121
StatusPublished
Cited by22 cases

This text of 513 A.2d 951 (Ellis v. Robert C. Morris, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. Robert C. Morris, Inc., 513 A.2d 951, 128 N.H. 358, 1986 N.H. LEXIS 299 (N.H. 1986).

Opinion

King, C.J.

This appeal arises from an order of the Trial Court (Wyman, J.) granting the defendant’s motion for summary judgment. The issue presented is whether a subsequent purchaser of a home may sue the builder for damages based on the builder’s negligent performance of the original construction contract. We hold that a builder has no tort obligation to subsequent purchasers of a house to prevent economic harm resulting from defects in the house. A purchaser’s action for damages for the cost of remedying defects sounds in contract; accordingly, in the absence of privity of contract between the purchaser and the builder, no action can be maintained.

In 1978, the defendant completed construction of a single-family residence in Peterborough. The clapboards installed on the house were selected by Dennis Balog, the original owner. Balog took possession of the house in January 1978, but sold the house to his employer before the year’s end. His employer in turn sold the house to the plaintiffs in February 1979. The contract between the seller and the plaintiffs provided that the “purchasers agree to accept the premises ... in ‘as is’ condition.”

The plaintiffs took possession of the house in February 1979. Thereafter, they observed that the clapboards were warping and cracking. The plaintiffs complained to the defendant, but the defendant refused to repair the siding. The plaintiffs then hired another contractor to replace the clapboards, and in March 1983 instituted this action, alleging that the clapboards were defective and that the defendant had failed to install them in a workmanlike manner.

The complaint may be read as raising both a claim in contract, for breach of implied warranty of habitability, and a claim in tort, for negligence. At oral argument, the plaintiffs waived the implied warranty issue, acknowledging that there was no privity of contract between themselves and the defendant. They contend, however, that the lack of privity should not bar their negligence action. According to the plaintiffs, a subsequent homeowner is entitled to the same protection as the original purchaser of a house because latent defects, such as defective clapboards, should be known to the builders who handle the materials but are difficult for potential purchasers to detect. Thus, they conclude, the defendant contractor [361]*361had a duty of ordinary care to all foreseeable parties, including subsequent purchasers of the house, to ensure that the clapboards were properly installed and were not defective.

In their brief, the plaintiffs rely almost exclusively on cases from other jurisdictions that extend an implied warranty of habitability to subsequent purchasers, see, e.g., Richards v. Power craft Homes, Inc., 139 Ariz. 242, 678 P.2d 427 (1984), or permit a subsequent purchaser to sue the builder for negligent performance of the original construction contract that results in defects latent at the time of purchase, see, e.g., Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo. 1983). See generally Annot., 10 A.L.R. 4th 385 (1981). These courts have been motivated in large part by two policy considerations. First, neither the initial nor the subsequent purchaser can effectively inspect the underlying construction or discover latent defects before purchase. Second, in an increasingly mobile society, builders can reasonably foresee frequent changes in home ownership. See, e.g., Cosmopolitan Homes, supra at 1045. Accordingly, courts have sought to rectify the perceived unfairness that arises when a subsequent homeowner, deemed no less worthy of protection than the initial purchaser, is denied recovery because of the lack of privity of contract with the builder.

Although we are cognizant of the problems a subsequent homeowner may face, we decline to follow the example of these cases and thereby depart from the traditional principles upon which contract and tort actions are predicated. Two decisions from other jurisdictions are instructive in this regard. In Redarowicz v. Ohlendorf 92 Ill. 2d 171, 441 N.E.2d 324 (1982), the plaintiff, a subsequent purchaser of a home, alleged that the chimney and adjoining brick wall were separating from the house and that the basement wall was cracked. The Supreme Court of Illinois permitted the plaintiff to sue the builder for breach of implied warranty of habitability and fitness, stating:

“The warranty of habitability is a creature of public policy. It is a judicial innovation that has evolved to protect purchasers of new houses upon discovery of latent defects in their homes. While the warranty of habitability has roots in the execution of the contract for sale, we emphasize that it exists independently. Privity of contract is not required.”

Id. at 183, 441 N.E.2d at 330 (citations omitted); cf. Woodward v. Chirco Const. Co., Inc., 141 Ariz. 514, 687 P.2d 1269 (1984) (stating that the imposition by law of an implied warranty of habitability did not transform the duty arising out of the contract into one based [362]*362on tort principles alone, but that privity of contract was not required to maintain the action).

We agree with the dissenting justice in Redarowiez, who stated that allowing an action for breach of .implied warranty in the absence of privity of contract was tantamount to imposing strict liability in tort. 92 Ill. 2d at 187, 441 N.E.2d at 331-32 (Ryan, C.J., dissenting). Under New Hampshire law, an implied warranty of habitability runs from the builder to the first owner of a residence. See Norton v. Burleaud, 115 N.H. 435, 436, 342 A.2d 629, 630 (1975). Implied warranties, however, “are imposed only in favor of a party to whom the defendant has already manifested an intent to be bound.” Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L. Rev. 917, 948 (1966). Warranty liability is “an incident to the core of consent — the contract itself.” Id. at 949. It remains a matter of contract and, as such, is subject to the requirement of privity. See Elliott v. Lachance, 109 N.H. 481, 484, 256 A.2d 153, 155 (1969).

Plaintiffs who lack privity of contract but would otherwise have a claim for implied warranty may under certain limited circumstances sue under a theory of strict liability in tort. See Elliott supra. We have recently emphasized that only the user or consumer of an unreasonably dangerous product, for whom proof of negligence would be practically impossible, may proceed on a theory of strict liability. See Bagley v. Controlled Environment Corp., 127 N.H. 556, 560, 503 A.2d 823, 825-26 (1986). Because a homebuyer ordinarily would not have that degree of difficulty proving negligence on the part of the builder, we decline to extend the remedy. Accordingly, a subsequent purchaser cannot sue for breach of implied warranty in the absence of privity of contract with the builder.

The second case we consider is Cosmopolitan Homes, Inc. v. Weller, 633 P.2d 1041 (Colo. 1983).

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Bluebook (online)
513 A.2d 951, 128 N.H. 358, 1986 N.H. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-robert-c-morris-inc-nh-1986.