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AMERICAN TOWERS OWNERS v. CCI MECHANICAL12/20/1996
appeals did not analyze the claim of negligent design separately, it concluded that "Maack's claims for purely economic damages based upon allegations of negligent design and construction must fail." Id. at 581 (emphasis added). Further, the court in Maack based its adoption of the economic loss rule in part on an Illinois Supreme Court decision that applied the doctrine to bar negligent design and supervision claims against a design professional. See id. at 580 (citing 2314 Lincoln Park West Condominium Ass'n, 144 Ill.Dec. 227, 555 N.E.2d at 348); see also Atherton Condominium Bd. v. Blume Dev. Co., 115 Wn.2d 506, 799 P.2d 250, 262 (1990) (en banc) (economic loss doctrine bar to owners association's negligence claim involving architect).
The Association relies upon Restatement (Second) of Torts § 324A, which provides:
One who undertakes . . . to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care. . . .
(Emphasis added.) This section does not strengthen the Association's position. The comments following the section underscore that its scope is limited to claims for "physical harm" to persons or property, neither of which is present here. See Restatement (Second) of Torts § 324A cmt. b (1965).
In sum, the Association's negligence claim pertains solely to its members' unmet expectations regarding the quality of their purchase, i.e., cumulatively, the entire complex, including its plumbing and mechanical systems. As one court explained:
Plaintiff homeowners faced with losses that are not of their own making present[ ] a sympathetic case. . . . We must exercise caution, however, that we do not unduly upset the law upon which expectations are built and business is conducted.
Stuart v. Coldwell Banker Commercial Group, Inc., 109 Wn.2d 406, 745 P.2d 1284, 1290 (1987). To allow the claim would be to impose the members' economic expectations upon parties whom the members did not know and with whom they did not deal and upon contracts to which they were not a party. We agree with the trial court's conclusion that no cause of action for negligence exists under these circumstances.
UNJUST ENRICHMENT
The Association additionally asserted a cause of action for unjust enrichment. The district court held that the claim "fails as a matter of law because (a) the subject matter of the claim was pre-empted by the existence of express contracts; (b) plaintiff conferred no benefit upon defendants; and (c) any enrichment of defendants was not unjust because it was the consideration bargained for under express contracts." We agree.
" 'Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. . . .' " Commercial Fixtures & Furnishings, Inc. v. Adams, 564 P.2d 773, 776 (Utah 1977) (quoting Baugh v. Darley, 112 Utah 1, 184 P.2d 335, 337 (1947)). We have held:
Three elements must be present before unjust enrichment may serve as a basis of recovery:
here must be (1) a benefit conferred on one person by another; (2) an appreciation or knowledge by the conferee of the benefit; and (3) the acceptance or retention by the conferee of the benefit under such circumstances as to make it inequitable for the conferee to retain the benefit without payment of its value.
Concrete Prods. Co. v. Salt Lake County, 734 P.2d 910, 911 (Utah 1987) (quoting Berrett v. Stevens, 690 P.2d 553, 557 (Utah 1984)). In other words, the remedy is one of rest
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