Daily Development for Wednesday, October 17, 2001

 

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

 

CONSTRUCTION; BUILDER'S LIABILITY; DAMAGES; EMOTIONAL DISTRESS:   Ohio (plurality opinion) joins  minority, holding that emotional distress damages are available in action for negligent construction of new home, even though liability is based upon contract.

Kishmarton v. William Baily Const., 93 Ohio St. 3d 226, 754 N.E. 2d 785 (2001)

This was a construction of a home to order for the owners.  The construction was unsatisfactory, and caused problems after the house was delivered.  The first issue considered the question of whether any claims for these problems arose ex delicto or ex contractu.  It concluded that, unlike the situation where a builder/seller delivers a completed home to a purchaser, the duty to construct the home in a workmanlike manner in this case arise entirely out of the contract.

Here, the buyers got $3750 in damages relating to the construction problems and $19,000 for "loss of enjoyment of the residence, annoyance and discomfort."  Normally, of course, emotional distress damages are not available as contract damages.  The court notes that the Restatement of Contracts would permit such damages, but confesses that this represents a minority position.

Neverhteless, the plurality of the court (in a 313 split) held that the awarding of emotional distress damages in Ohio was compelled by the Ohio Constitutional provision stating that: "every person, for an injury done to him . . . shall have remedy by due course of law."   The Restatement of Contracts (largely ignored in this area), provides that "Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result."

Here, however, the court concluded that the damages award was inappropriate, and that it was unlikely that the record would support a claim for emotional distress damages. Consequently, it reversed.

Comment:  Is the Ohio court, without actually saying so concluding that every contract for the construction of a residence is the kind of a contract that serious emotional disturbance is a particularly likely result?

Probably not.  Otherwise it would not have ultimately reversed the damages award.

Is the court saying that some physical injury is normally required?  No, or it would have said that, one would assume.

Presumably, the court is saying that the builder  must be aware of special circumstances in the particular case that serious emotional harm might result if the construction is not properly carried out.  Note that most often this knowledge will arise during the interaction between builder and owner at the time that the builder is trying to remediate the alleged faulty construction.  Should this result in an action based upon the original defect?  The editor would say no.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:

ListServ@listserv.umkc.edu

Subject:

[Does not matter]

Text in body of message

Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:

ListServ@listserv.umkc.edu

Subject:

[Does not matter]

Text in body of message

Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named "Brokerdirt." But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:

ListServ@listserv.umkc.edu

Subject:

[Does not matter]

Text in body of message

Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:

ListServ@listserv.umkc.edu

Subject:

[Does not matter]

Text in body of message

Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/