15 Trial Lawyer • Fall 2023 See Residential Construction p 16 negligence case so long as the damage is something other than “pure economic loss.” Since the Bunnell v. Dalton case, it is even possible for an owner to sue a contractor or architect for negligent construction despite having knowledge of the defects at the time of purchasing the home. So, for Jane, the law allowed for a negligence claim, but we still had to prove the claim. That meant showing that a defendant, whether the contractor or geotechnical engineer, or both, violated a standard of care. What is that standard of care for these defendant professionals? In general, case law instructs us that the contractor or design professional must exercise reasonable care to avoid foreseeable harm by performing work in a workmanlike manner and in compliance with the building codes and other applicable laws. Unfortunately, it is not always easy to establish what the standard of care really is for construction. Proving the standard The standard of care can be established by showing the approved practice in the industry. Sometimes this is shown by reference to trade publications, published industry standards, and sometimes manufacturer installation instructions are used. Most commonly, the workmanlike standard is proven through the use of expert witnesses. I retained an expert in Jane’s case just as I do on every construction defect case. For my client, that meant having the home inspected by an expert, and having the expert ready to testify as to the standard of care and the breach of that same standard. The expert can then refer to various publications and standards. For example, if my expert is ready to testify about the defective installation of masonry, they may refer to installation guides of the Brick Industry Association. Because Jane was looking at geotechnical engineering issues as well as “standard” construction defects, it meant having two experts in her case. The building exterior could be assessed by an expert knowledgeable in that field, but the geotechnical engineering issues had to be reviewed by an engineer qualified to do that sort of analysis. The discussion of the standard of care is not cut and dry. In fact, the experts on the defense side of my client’s case were not automatically going to agree with my experts as to the standard building practices at issue. It is very common for the experts on each side of a construction defect case to cite different practices, printed materials and building standards to support their arguments about the standard of care. The code The building code can be really useful in construction defect negligence claims. Although the building code may not specifically address every kind of construction issue, it can provide the framework to allege a negligence per se claim against a contractor or design professional. A negligence per se claim is just a way to prove negligence using a statute or ordinance to establish a rebuttable standard of care. It does not have to be a cause of action distinct from a traditional negligence claim. To set up this claim for my client, I was able to allege that the defendant contractor violated specific provisions of the building code, the plaintiff was injured due to the violation, the plaintiff was meant to be protected by the code (a homeowner fits the bill), and the injury was of a type the code is meant to prevent (damage to a home and homeowner). This type of negligence per se claim also works for tenants, such as in Eduardo v. Clatsop Cmty. Res. Dev. Corp. There, a tenant had a negligence claim against the landlord for the tenant’s personal injuries and successfully used the violations of the building code to establish unreasonable conduct and negligence per se. Economic losses Unlike personal injury cases, negligence claims in construction defect matters have to contend with the economic loss rule. Generally, for cases without any injury damages to the person, these claims require some element of property damage or deterioration, absent a special relationship or heightened duty of care. Because my client was a stranger to the builder, there was no “special relationship” or “heightened” duty of care. I had to explain to my client it was really important to identify “damage” resulting from construction defects in order to make the negligence claim. The line between property damage and economic loss is not always clear in construction disputes, and it also blends into the issue of insurance coverage. Luckily for Jane, the defects in construction had caused some property damage including the cracking of walls and ceilings, and the concrete separation and cracking. One extra hurdle Compared to other types of negligence claims, construction defect negligence claims are subject to an extra process. For Jane, we had to comply with the statutory notice of defect process described in ORS 701.565. The statute requires that Jane send the contractor a specific letter, or notice of defect, that must comply with certain rules, and it must be sufficient to put the contractor on notice of the defects. If the owner does not follow the notice of defect statute, the court must dismiss the lawsuit without prejudice. The notice of defect, inspection requests and written reports might be used as evidence in court. Once a contractor receives a notice of defect, the contractor can request an inspection, offer a repair or a settlement, or reject the whole thing. The contractor is also supposed to put subcontractors and others on notice of the claim via “secondary” notices. Under this statutory scheme, the owner is not required to accept any settlement or repair offer
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