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Vol. 2011-01 | January, 2011

Negligence and Warranty

In many construction cases, the owner’s claims that work was improperly completed by the contractor, may give rise to two (2) primary causes of action against the contractor, namely: negligence and breach of contract.

The failure to perform the work in a workmanlike manner, i.e., negligence, may be brought by the owner within the controlling statute of limitations of each state and jurisdiction. Or, such limitation may be imposed by contract terms.

When a contractor undertakes to perform a construction contract, common law imposes a duty to perform those services in a workmanlike manner.

The term “Workmanlike manner” is the customary, accepted practice of doing or performing the work in the community where the work is to be performed. The test is not what either party individually expects or would like; it is the performance of the work, equal in quality to that customarily performed by others in the same trade, in the same community, or the same type of work.

The failure to perform in a workmanlike manner may expose the contractor to liability for damages, measured by the cost to repair the deficient work. In a claim for negligence, or failing to perform in a workmanlike manner, merely proving the existence of a defect is insufficient, without showing that the defect resulted from the contractor’s failure to use ordinary care.

In dealing with consumers, contractors should be aware that unworkmanlike construction may also result in claims for violation of the Consumer Sales Practices Act, allowing for treble damages and reimbursement of attorney fees for the damaged consumer. Some Courts have held that consumer protection claims, based on home construction, does fall within the purview of the Consumer Sales Practices Act. In one case, a homeowner withheld final payment from the roofing contractor because of dissatisfaction with the work performed. When the contractor sued for the remaining contract price, the homeowner counterclaimed for breach of contract,

negligence, violations of the Consumer Sales Practices Act, and fraud. The Court held that a violation of (Ohio) R.C. 1345.02(A) could be based on a finding that the contractor performed its work in an unworkmanlike manner, even though the contractor’s actions did not meet any of the specific definitions contained in subsection (B) of the Act.

The other claim usually brought by owners against contractors, is for breach of warranty. Where, for example, a contractor provides a one (1) year repair or replacement warranty covering all workmanship and materials, unlike negligence claims, the owner need not prove that the defect resulted from the contractor’s failure to use ordinary care. Here the owner need only show that a defect in the structure was discovered within the one year period following completion of construction. Following the running of the one (1) year warranty period, any defects discovered by the owner after this time will have to be brought under a claim of negligence, or failure to perform in a workmanlike manner.

Construction practices must be reviewed on a regular basis for conformity with the latest and best practices, as well as the applicable laws, to avoid claims. Good management, like good workmanship is also good business practice.

“Justice is my being allowed to do whatever I like. Injustice is whatever prevents my doing so.”
Samuel Butler (1835-1902) English author

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.