 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Aas v. Superior Court of San Diego County12/4/2000
e the fact that for approximately 17 years they have not caused personal injury to any tenant' "]; cf. Stearman v. Centex Homes (2000) 78 Cal.App.4th 611, 618 [discussing with approval "Huang's definition and application of [Seely's] economic loss rule"].)
D.
Finally, the above reading of Seely, supra, 63 Cal.2d 9, also is confirmed by numerous cases from other jurisdictions that permit recovery of construction repair costs essentially identical to those here at issue. Although the majority adopts a broad view of the Seely dictum as barring recovery of costs for repair of construction defects that pose a substantial risk to persons and property, the trend of well-reasoned sister-court decisions is in the opposite direction.
Almost all of the out-of-state decisions in this area cite and discuss Seely and adopt in general a version of the rule set out in that case, restricting recovery for commercial expectation damages. These sister-state decisions recognize that Seely was concerned primarily with precluding potentially limitless damages for lost profits and/or lost commercial expectations in the context of suits for product liability, and these out-of-state cases also recognize, explicitly or implicitly, that suits for costs to repair and correct dwelling safety defects that pose a serious risk to life and limb are clearly distinguishable from Seely and do not similarly implicate concerns of limitless damages.
The majority, ante, at page 7, footnote 7, mentions three such out-of-state decisions. (Kennedy v. Columbia Lumber & Mfg. Co. (S.C. 1989) 384 S.E.2d 730, 737 [a builder does not escape liability for building code violations merely because "luck has smiled upon him and no physical harm has yet occurred. . . . e once again join those states which strive to protect the modern new home buyer"]; Oates v. Jag, Inc. (N.C. 1985) 333 S.E.2d 222, 225-226 [allowing recovery of repair costs to correct building code violations that had apparently not caused physical damages, and noting, " ` e must be realistic. . . . The purchaser can ill afford to suddenly find a latent defect in his or her home . . . and have no remedy for recourse' "]; Council of Co-Owners v. Whiting-Turner, supra, 517 A.2d 336 (Whiting-Turner).)
The Whiting-Turner case is especially well reasoned and particularly apt here. In that case the Maryland high court permitted the plaintiff in a negligence action to recover the costs necessary to correct the construction of 10 vertical utility shafts in a 22-story condominium complex. The shafts presented a fire hazard because of the absence of required insulation - a serious violation of applicable building codes. (Whiting-Turner, supra, 517 A.2d at pp. 338-339.) Although the defective shafts all posed a clear danger of death or personal injury , none of them yet had produced any personal injury or physical property damage.
The Whiting-Turner decision held: " `We reject the contention by appellant that there can be no recovery in negligence absent proof of personal injury or property damage. We hold that there can be recovery for economic loss. Why should a buyer have to wait for a personal tragedy to occur in order to recover damages to remedy or repair defects? In the final analysis, the cost to the developer for a resulting tragedy could be far greater than the cost of remedying the condition.' [ ] We conclude that the determination of whether a duty will be imposed in this type of case should depend upon the risk generated by the negligent conduct, rather than upon the fortuitous circumstance of the nature of the resultant damage. Where the risk is of death or personal injury the action will lie for recovery of the reasonable c
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|