Arizona Court of Appeals Addresses Subsequent Homeowner Negligence Claims (Sullivan II)

The Arizona Court of Appeals addressed the question whether a subsequent (i.e., non-original) homeowner may maintain a negligence cause of action against a homebuilder for economic losses arising from latent construction defects unaccompanied by physical injury to persons or other property.

The Court of Appeals in Sullivan v. Pulte Home Corporation, 354 P.3d 424 (July 28, 2015) upheld the dismissal of negligence based claims finding a lack of duty to a subsequent purchaser of a home. This opinion, which is now on appeal to the Arizona Supreme Court, if upheld, will benefit homebuilders, design professionals and contractors in limiting the claims of subsequent purchasers of homes.

History of the Claim

Defendant/Appellee Pulte Home Corporation built homes in a Phoenix hillside community. In 2000, Pulte sold the home at issue in these proceedings to the original homeowners, who, in 2003, sold the property to Plaintiffs/Appellants John and Susan Sullivan. In 2009, the Sullivans discovered problems with the home’s hillside retaining wall. An engineering firm they retained concluded that Pulte had constructed the retaining wall and prepared the home site without proper structural and safety components, including footings, rebar, and adequate drainage and grading. Pulte declined the Sullivans’ request to make repairs.

The Sullivans sued Pulte, alleging eleven separate counts, including several negligence-based claims. Pulte moved to dismiss all counts of the complaint pursuant to Arizona Rule of Civil Procedure 12(b)(6), arguing that the implied warranty claim was barred by the 8 year statute of repose and that the tort claims were impermissible under the economic loss doctrine. The superior court granted Pulte’s motion, and the Sullivans appealed.

This Court affirmed the dismissal of all counts of the Sullivans’ complaint except the negligence claims. Sullivan v. Pulte Home Corp., 231 Ariz. 53, 60 (App. 2012), vacated in part, 232 Ariz. 344, 306 P.3d 1 (2013). The Court held that because the Sullivans were not in privity with Pulte and had no contract with the homebuilder, the economic loss doctrine did not bar their negligence claims. The Arizona Supreme Court vacated the portion of the Court of Appeals opinion discussing the economic loss doctrine, but nevertheless agreed that it did not bar the Sullivans’ negligence claims. Sullivan v. Pulte Home Corp., 232 Ariz. 344, 345-47, ¶¶ 7, 11, 15, 306 P.3d 1, 2-4 (2013) (“Sullivan I”). Sullivan I held that the economic loss doctrine “protects the expectations of contracting parties, but, in the absence of a contract, it does not pose a barrier to tort claims that are otherwise permitted by substantive law.” Id. at 346, ¶ 11, 306 P.3d at 3. Instead, courts must “consider the applicable substantive law to determine if non-contracting parties may recover economic losses in tort.” Id. at 347, ¶ 14, 306 P.3d at 4.

On remand to the superior court, Pulte moved to dismiss the negligence claims pursuant to Rule 12(b)(6), arguing “a homebuilder such as Pulte does not owe a duty of care to a subsequent purchaser (such as plaintiffs) to prevent them from economic harm.” The superior court granted Pulte’s motion, and the Sullivans again timely appealed.

Sullivan II

The Court of Appeals accepted jurisdiction to determine whether a subsequent homeowner could maintain a negligence action against a homebuilder for latent construction defects resulting in purely economic losses.

On appeal, the Sullivans argued that Pulte’s duty arose out of public policy principles based in the municipalities’ building codes, Arizona statutes and the Arizona Administrative Code governing contractors. In determining that neither the Building Code, nor Arizona’s statutory or administrative schemes supported the imposition of a public policy-based duty for purely economic loss, the Court of Appeal found that the codes and statutes did not provide a sufficient basis for holding that homebuilders owe public policy-based tort duties to subsequent homeowners for economic loss. The statutes and codes do not delineate a specific class of persons they seek to protect distinguishable from the public. The Court stated that the governance of licensed contractors has a broad, general purpose: “to protect the public health, safety and welfare by licensing, bonding and regulating contractors engaged in construction,” but because the Sullivans had no contract with Pulte, the regulatory provisions did not support imposing a public policy-based tort duty in favor of subsequent property owners asserting only economic loss. As the Sullivans’ claims did not arise out of personal injury or damage to other property, the Court of Appeals found that there was no duty on the part of Pulte to repair a subsequent purchaser’s retaining wall.

Significance of the Ruling

Although Sullivan II is now on appeal to the Supreme Court of Arizona, the Court of Appeals ruling is certainly a positive step toward limiting the liability of homebuilders, contractors, subcontractors and design professionals for claims by subsequent homeowners. The ruling in Sullivan II, if upheld, will limit the bases that plaintiffs can rely on to create a duty.  The hope is that Arizona courts will continue to be active in limiting the liability of homebuilders, design professionals and contractors.

Illinois Court Keeps with Recent Trend and Affirms Summary Judgment for Contractor in Jobsite Injury Lawsuit

Taking advantage of recent law in favor of contractor defendants in construction negligence lawsuits, Gordon & Rees recently obtained summary judgment in favor of its demolition contractor client in a high-exposure multi-plaintiff lawsuit filed in Cook County, Illinois by a personal injury lawyer.

In the consolidated action, the two plaintiffs were employees of a scaffold erection company hired by Gordon & Rees’ client to erect a scaffold to facilitate the demolition of a Chicago high school gymnasium ceiling. During the erection, the scaffold collapsed, causing the plaintiffs to fall 21 feet to the ground and sustain serious injuries. Both plaintiffs alleged that Gordon & Rees’ client, as the hiring contractor, neglected its responsibility to ensure that plaintiffs worked under safe conditions and failed to properly supervise plaintiffs’ work.

Gordon & Rees sought summary judgment, contending that its client did not assert any control over plaintiffs’ work whatsoever. Relying upon both testimony as well as the contract, Gordon & Rees argued that because there was no control over plaintiffs’ work, it must follow that there was no liability.

The Cook County court agreed with Gordon & Rees, citing to favorable Illinois law regarding Sections 343 and 414 of the Restatement (Second) of Torts. Specifically, the court found that in order for a contractor to be subject to liability, the contractor or employer must have retained at least some degree of control over the manner in which the work was performed; it is not enough that the contractor merely has a general right to order the work stopped or resumed. With respect to the contract, the court agreed that Illinois law is clear that contract language alone is not sufficient to impose liability, nor is the existence of a safety program (citing Martens v. MCL Construction Corp., 347 Ill.App.3d 303 (1st Dist. 2004)).

Here, because the demolition contractor was only on site once—for a half hour—and never observed the scaffolding in the condition that led to its collapse, it could not be found that the contractor controlled the means and methods of plaintiffs’ work sufficient to rise to potential liability.

The Martens case and similar opinions that have since followed are clearly helpful for contractors who find themselves entrenched in construction injury lawsuits filed by personal injury attorney firms. To wit, courts will no longer deny summary judgment just because one party merely contracted with or supplied a safety manual to another party. Rather, there must be evidence of sufficient interaction and control in order to potentially impose liability on the part of a contractor.