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.

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