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Vol. 2008-10 | October, 2008

Construction Law; Workmanlike Manner, Defined

The quality of construction work and services have been the subject of recorded volumes of discord, disagreement and litigation. Courts have consistently held contractors subject to a duty to perform to certain accepted practice and standards: {¶19} “The duty to perform in a workmanlike manner is imposed by common law upon builders and contractors.” Barton v. Ellis (1986), 34 Ohio App.3d 251, 252, citing Mitchem v. Johnson (1966), 7 Ohio St.2d 66; Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376. *** The implied duty of builders and contractors to perform their services in a workmanlike manner “‘requires a construction professional to act reasonably and to exercise the degree of care which a member of the construction trade in good standing in that community would exercise under the same or similar circumstances.'” Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081, at ¶19, quoting Seff v. Davis, Franklin App. No. 03AP-159, 2003-Ohio-7029, at ¶19. {¶20} In Barton, this court explained:

Absent express or implied warranties as to the quality or fitness of work performed, the liability of a builder-vendor of a completed structure for failure to exercise reasonable care to perform in a workmanlike manner sounds in tort, and arises ex delicto. The essential allegation is that the builder-vendor’s negligence proximately causes the vendee’s damages.

By contrast, in the provision of future services, liability arises ex contractu as an implied bargain, provision, condition, or term of sale.

The Supreme Court of Ohio has held: A duty is imposed by law upon a builder-vendor of a real-property structure to construct the same in a workmanlike manner and to employ such care and skill in the choice of materials and work as will be commensurate with the gravity of the risk involved in protecting the structure against faults and hazards, including those inherent in its site. If the violation of that duty proximately causes a defect hidden from revelation by an inspection reasonably available to the vendee, the vendor is answerable to the vendee for the resulting damages. Mitchem v. Johnson (1966), 7 Ohio St.2d 66, 36 O.O.2d 52, 218 N.E.2d 594, at paragraph three of the syllabus. Mitchem clearly allows a vendee to bring a cause of action against a builder/vendor. No court in Ohio has allowed a tenant to assert a cause of action against a builder/vendor unless the builder/vendor has built a structure based on a commercial tenant’s specific needs. See United States Fid. & Guar. Co. v. Schneider, Inc., 6th Dist. No. H94-008, 1995 WL 433954, at *4 (“where a building is constructed for the specific purpose of serving a tenant’s understood needs, the contractor owes a duty of due care in the design and construction of the building to such tenant, even though there is no privity of contract between them”). We find no reason to expand Ohio law to create a new class of plaintiffs. Baraby v. Swords, 166 Ohio App.3d 527, 534, 2006-Ohio-1993.

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.