Condominium Defects

Recently, the Ohio Supreme Court expanded the theory for the recovery of damages in construction defect cases to include emotional distress. This expansion is limited, but the limitation is to the benefit of condominium owners. As in all cases, the facts are determinative.

The homeowners cobntracted with the builder to construct a residentioan home in Cuyahoga County. They agreed to pay, with change orders, $219,000.00. The builder agreed to build their home in a “workmanlike manner.”

They moved into their new house in the spring, but by that winter there was water leaking through their ceiling and down their walls. Even though the builder attempted to fix the problem, the leaks continued. (I hate to say this, but this does sound familiar!)

The homeowner sued the builder claiming that the builder (1) breached its implied warranty and duty to provide workmanlike construction service by building their home in a negligent manner, (2) breached the terms of an express warranty and (3) was negligent in building and constructing the home. The jury returned a verdict in favor of the homeowner, and, surprisingly, included damages for loss of enjoyment. This part of the verdict was upheld by the Cuyahoga County Court of Appeals.

The builder appealed to the Ohio Supreme Court the issue of whether a homeowner in such a case as this can recover emotional distress damages for loss of enjoyment, annoyance or discomfort.

The Ohio Supreme Court, in this case, for the first time in Ohio, allowed emotional distress damages in contract cases involving transactions between purchasers and builder-sellers.

The Ohio Supreme Court declared: “…when a [purchaser’s] claim for breach of an implied duty to construct a house in a workmanlike manner is successful, recovery for emotional distress damages will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that seerious emotional distress was a particularly likely result.”

What does this mean? Damages for emotional distress may be awarded, but are very difficult to prove. Even if they are foreseeable, they are particularly difficult to establish and to measure.

Prior to the Supreme Court’s ruling, a wronged homeowner could recover the cost of repair for defective construction work. In order for the construction to meet the conditions required in a contract, repairing or replacing deficient work as well as completing unfinished or omitted work may be necessary However, we now know that a homeowner can recover damages for emotional distress from a breach of contract if the contract or the breach is of such a kind that "serious emotional disturbance" is a particularly likely result.

Should you have a fact pattern which may meet the criteria for the new measure of damages for construction defect cases, please do not hesitate to call us.

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