Part I: Elements and Duty
Construction defects are a problem in Florida. In an environment that is hot, humid, and stormy, defective construction is magnified often causing damaging water leaks, harmful mold intrusion and amongst other things, a serious disruption to our everyday lives. Typical sources of water intrusion are roofs, windows, sealant failures, stucco failures, and balconies. Aside from the obvious financial challenges, construction defect cases present many legal challenges. Initially, recognizing the valid causes of action to assert against culpable parties can be a proverbial “tap dance”. To remedy any harm, a plaintiff must look to the contractor(s) at fault for the construction defect, including the general contractor, subcontractors, and other lower-tier trades and maybe even suppliers. A negligence claim is one of the possible causes of action that a victim of construction defects can assert against contractors in Florida.
Elements of Negligence. Negligence is an action in tort law, as opposed to contract law. In Florida, to recover on a tort action for negligence, a plaintiff needs to prove that: (1) the defendant owed plaintiff a legal duty; (2) the defendant breached that duty; (3) plaintiff suffered injury as a result of that breach; and (4) the injury caused damage. Kayfetz v. A.M. Best Roofing, 832 So.2d 784, 786 (Fla. 3d DCA 2002). In short, negligence is the breach of a legal duty. However, a claim for negligence does not exist if the contractor breached some duty that attached only because of a contract. See e.g. Monroe v. Sarasota County School Bd., 746 So.2d 530 (Fla. 2d DCA 1999). In other words, negligence is the breach of a legal duty other than a contractual duty. See Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1110 (Fla. 2005).
Where a contract for construction exists, a tort action will lie for negligent acts considered to be independent from the acts that breached the contract. Indemnity Ins. Co. v. American Aviation, Inc., 891 So. 2d 532, 537 (Fla. 2004). Stated differently, there is no claim for negligence unless the facts and harm are distinguishable (i.e. separate and distinct) from the claim of breach of contract. Eye Care Intern., Inc. v. Underhill, 92 F. Supp.2d 1310, 1315 (M.D. Fla. 2000); HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238 (Fla. 1996). Alleging that someone was negligent by improperly or negligently performing duties in a contract will not be a viable cause of action in negligence. Even an intentional, willful and outrageous breach of a contract generally will not create a tort where a tort does not otherwise exist. Lewis v. Guthartz, 428 So.2d 222, 224 (Fla. 1982); Jewelcor Jewlers & Distr., Inc. v. Southern Ornamentals, Inc., 499 So.2d 850 (Fla. 4th DCA 1986). “[I]t is only when the breach of contract is attended by some additional conduct which amounts to an independent tort that such breach can constitute negligence.” American Aviation, Inc., 891 So.2d at 537. And “[w]here damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort.” Id. at 536. Simply stated, if you have a contract for the construction of the building, the claims a plaintiff will bring are associated with the right arising under the contract or any warranty, express or implied, stemming therefrom.
Proving Non-Contractual Duty. To succeed in a claim for negligence, a plaintiff must prove that the contractor defendant breached a non-contractual legal duty to the plaintiff. Non-contractual legal duties include those prescribed by statutes and ordinances, as well as the common law duty to exercise reasonable care to prevent foreseeable harm. Goldberg, supra. Proving the breach of a legal duty based on statute or ordinance is fairly straightforward. For instance, contractors have a duty to comply with the building code, and violation of a building code “constitutes prima facie evidence of negligence, but not negligence per se.” St. Cyr v. Flying J Inc., 2006 U.S. Dist. LEXIS 52239 (M.D. Fla. 2006); Lindsey v. Bill Arflin Bonding Agency, 645 So.2d 565, 567 (Fla. 1st DCA 1994).
Proving the breach of a common law duty can be quite challenging. First, the court must determine whether such duty exists. L.A. Fitness Int’l, LLC v. Mayer, 980 So.2d 550, 557 (Fla. 4th DCA 2008). When a contractor renders services, he assumes a common law duty to exercise a reasonable degree of care in the performance of those services to prevent reasonably foreseeable harm. See Barfield v. Langley, 432 So.2d 748, 749 (Fla. 2d DCA 1983). But defining the reasonable degree of care is the issue. Here, defining the contractor’s standard of care begins by establishing construction industry standards. See L.A. Fitness Int’l, LLC, 980 So. 2d at 558 (“Although the custom and practice of an industry can help define a standard of care a party must exercise after it has undertaken a duty, industry standards do not give rise to an independent legal duty.”)
Proving such duty is typically accomplished with the hiring of experts who will opine on the construction and design standards of care. Expert witness testimony then becomes critical in establishing the parameters of industry standard. After the standard is established, the plaintiff must then prove that the construction defect constituted a failure to meet that particular standard of care. See Id. at 556. This is typically an issue for the finder of fact or jury. Id. Here again, expert witness testimony is critical in proving whether the contractor’s performance satisfied industry standards. In Part II of this article, we will discuss certain defenses that a contractor may assert against negligence claims.