14 Trial Lawyer • Fall 2023 By Rob Wilkinson OTLA Guardian My client, Jane, bought a newer house in a small town outside Salem. She thought she would be spending her days taking care of her family, home and garden. As it turned out, she was wrong. Instead, Jane had to take a deep dive into construction defect litigation. And she had to spend way too much time with me. What Jane did not know was the house she bought, and a lot of the homes in the same neighborhood, had been constructed on clay soil. The clay soil would expand when it was wet and then shrink when it dried out. That meant Jane’s house rode this clay wave through the seasons. Parts of the house would go up at times, and parts would go down. For example, a level survey would show Rob Wilkinson one corner of the house three or four inches higher than the opposite corner. Doors would stick, and windows wouldn’t open or latch. The sheetrock of the walls and ceilings was covered in cracks. The concrete porch and steps separated from the house, and the driveway and garage floor developed deep fissures. Jane’s house could be fixed, but it was not an easy process. The repair involved underpinning the foundation so the house was no longer supported on the clay soil, and demolishing and repouring the concrete steps, driveway and garage floor. It was expensive and disruptive for those living in the home. Who was responsible for this problem? Jane and I talked a lot about this question. We consulted experts, and we determined this was a problem caused by both construction contractors and geotechnical engineers. Once we figured out who might be responsible, we had to work through the steps needed to prove professional negligence. We would have to prove the defendants conducted themselves in a way that fell below the standard of care for similar professionals. Although this is in many ways like bringing a negligence claim against any other kind of professional, there are some special factors that apply only to construction defect negligence cases. Because Jane did not purchase her home directly from the builder of the home, she did not have any kind of contract claim available to her. Instead, her only claim against the original builder had to be a negligence claim. Similarly, Jane did not have any kind of contract with the original geotechnical engineer signing off on the development and construction of the home. That claim too had to be negligence. The Oregon advantage Luckily, the house is in Oregon. Unlike many other states such as Washington, a homeowner in Oregon can allege a claim for negligent construction against anyone, regardless of privity or contract. It took a while to cement this into law in Oregon, but with cases such as Abraham v. T. Henry Construction, and Harris v. Suniga, the law is now clear that privity is not required for a construction defect PROFESSIONAL NEGLIGENCE IN RESIDENTIAL CONSTRUCTION DEFECT CASES
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