Opinion
No. 80CA0084
Decided July 10, 1980. Opinion modified and as modified petition for rehearing denied August 21, 1980. Certiorari granted February 2, 1981.
Subsequent purchasers of house appealed from a judgment of the trial court dismissing their complaint seeking recovery for alleged defects in the house which had been built by defendants.
Reversed
1. NEGLIGENCE — Subsequent Purchaser — House — Seeks Recovery — Property Damage — Negligence of Builder — Claim for Relief Stated. Where a subsequent purchaser of a house seeks to recover for property damage to the structure allegedly caused by the negligence of the house builder, an actionable claim for relief has been stated.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Omer Griffin, for plaintiffs-appellants.
Calkins, Kramer, Grimshaw Harring, Richard L. Harring, for defendants-appellees.
Plaintiffs appeal from a judgment of the trial court dismissing their complaint. We reverse.
In January 1977, plaintiffs purchased a home which had been built by defendants in 1973. Prior to plaintiffs' purchase of it, there had been several owners of the house. In their complaint, plaintiffs alleged that the residence was in defective condition when purchased; that they were without knowledge or skill to enable them to detect the defective condition of the property; that after they moved in, severe cracks in the structure developed and that they became aware of numerous defects in workmanship, design and material; that the premises had been defectively constructed; that defendants knew or should have reasonably foreseen the contemplated defective conditions; and the defendants' negligence in the construction and design of the premises proximately caused plaintiffs' damages and will continue to cause damages.
In response to plaintiffs' complaint, defendants filed a motion to dismiss for failure to state a claim. On the basis that the plaintiffs were not "the first purchasers or users of the premises," the trial court dismissed plaintiffs" complaint. This was error.
Colorado has recognized recovery of damages for negligence without the parties being in privity of contract. In Wright v. Creative Corp., 30 Colo. App. 575, 498 P.2d 1179 (1972), plaintiffs were the second owners of a home and sought recovery for injuries sustained when their son ran into an unmarked sliding glass door. In concluding that a claim for relief sounding in negligence had been stated, the court determined that as to structures, as well as to chattels, tort liability may attach irrespective of contractual relationship. Similarly, in Tamblyn v. Mickey Fox, Inc., 195 Colo. 354, 578 P.2d 641 (1978), a subsequent homeowner was not barred by the special statute of limitations, § 13-80-127 C.R.S. 1973, from bringing suit for negligence against engineer used by the builder of the home.
[1] Wright, and Tamblyn, hold that subsequent home buyers are within the class of persons to whom a duty of care is owed by those who construct the home. We conclude that where a subsequent purchaser of a house seeks to recover for property damage to the structure allegedly caused by the negligence of the home builder, an actionable claim for relief has been stated.
Whether subsequent homeowners can maintain an action against the builder for breach of implied warranty of habitability is not the issue here. See Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260 (1963); Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964). This is a negligence action.
The judgment is reversed and the cause is remanded with instructions to reinstate plaintiffs' complaint.
JUDGE VAN CISE and JUDGE KIRSHBAUM concur.