Coburn v. Lenox Homes, Inc.

Decision Date18 October 1977
Citation173 Conn. 567,378 A.2d 599
CourtConnecticut Supreme Court
PartiesAnne S. COBURN et al. v. LENOX HOMES, INC., et al.

Peter J. Strassberger, Ridgefield, for appellants (plaintiffs).

Warren P. Joblin, Westport, for appellee (named defendant).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

LONGO, Associate Justice.

The plaintiffs brought this action seeking damages from Lenox Homes, Inc., hereinafter referred to as the defendant, arising from the failure of a septic system installed by the defendant. The defendant successfully demurred to the complaint and the plaintiffs have appealed, challenging the action of the court in sustaining the demurrer.

By agreement dated March 16, 1972, the defendant agreed to construct the residence in question for James and Joyce Buenger. On June 14, 1974, the Buengers contracted to sell the premises to the plaintiffs, who ultimately purchased and occupied the premises and discovered the faulty septic system.

In the first count of their complaint, the plaintiffs alleged that, under General Statutes § 52-563a, they were protected by an implied warranty from the defendant. General Statutes § 52-563a states: "The issuance by the building department of any municipality of a certificate of occupancy for any newly constructed single-family dwelling shall carry an implied warranty to the purchaser of such dwelling from the vendor who constructed it that such vendor has complied with the building code or the customary application and interpretation of the building code of such municipality. No action shall be brought on such implied warranty but within three years next from the date of the issuance of such certificate of occupancy." The plaintiffs argue that since they are purchasers of the dwelling within three years of the issuance of a certificate of occupancy, 1 they fall within the statute. The plaintiffs have misconstrued the statute. While the language that there shall be "an implied warranty to the purchaser of such dwelling from the vendor who constructed it" at first seems ambiguous, upon closer reading it appears that the legislature intended that the implied warranty would run from the vendor who constructed the dwelling to the person who purchased the dwelling from that vendor. This reading is buttressed by the subsequent clarifying action of the legislature in defining "purchaser" for purposes of General Statutes § 52-563a as "the original buyer, his heirs or designated representatives." 1975 Public Acts, No. 75-637, § 1. We are also unpersuaded by the plaintiffs' suggestion that the three-year limit within which actions must be brought on the warranty supports the interpretation that an implied warranty shall extend to any purchaser of the house within three years of the issuance of a certificate of occupancy. Rather, the three-year limitation was clearly intended to operate as a statute of limitations which does not define the substantive rights of the parties, but only restricts the period within which those substantive rights must be asserted. The plaintiffs would have us read into the definition of "purchaser" the law of negligence as it has developed since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050. Since it appears clear to us that the legislature, which recently acted on the matter, did not do so, we should not. It was, therefore, proper for the court to sustain the demurrer to the first count of the plaintiffs' complaint.

The second count of the plaintiffs' complaint sounded in contract. The proposition that one who was neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract merits little discussion. Knapp v. New Haven Road Construction Co., 150 Conn. 321, 189 A.2d 386. We can similarly dispose of the section of the plaintiffs' third count which alleges that the plaintiffs have an action based on express warranties in the contract between the defendant and the original purchaser.

More difficult questions are posed by those parts of the third and fourth counts of the plaintiffs' complaint which allege actions against the defendant on theories of implied warranty and negligence.

The doctrine of implied warranty has been extended in recent years to protect the consumers of numerous products from the effects of dangerous or defective items. This trend has been extended by many states to the sale of new homes. We recently noted "that the overwhelming trend in recent decisions from other jurisdictions, as well as in our own Superior Court, is to invoke the doctrine of implied warranty of workmanship and habitability in cases involving the sale of new homes by the builder. See, e. g., City of Philadelphia v. Page, 363 F.Supp. 148 (E.D.Pa.); Vernali v. Centrella, 28 Conn.Sup. 476, 266 A.2d 200; Theis v. Heuer, 149 Ind.App. 52, 280 N.E.2d 300; Yepsen v. Burgess, 269 Or. 635, 525 P.2d 1019; Elderkin v. Gaster,447 Pa. 118, 288 A.2d 771; Padula v. J. J. Deb-Cin Homes, Inc., 111 R.I. 29, 298 A.2d 529; Hollen v. Leadership Homes, Inc., 502 S.W.2d 837 (Tex.Civ.App.), and cases collected at 25 A.L.R.3d 383, 413-19, as supplemented." Scribner v. O'Brien, Inc., 169 Conn. 389, 402-403, 363 A.2d 160, 168.

The cases recognizing an implied warranty covering homes have almost uniformly limited recovery to actions by the original purchaser against the builder-vendor of a new home. See, e. g., cases collected at 25 A.L.R.3d 383, 413-19. We find these limits to be well founded and fatal to the plaintiffs' implied warranty claim. The plaintiffs in this case were not in privity with the builder-vendor of the house. They bought it from the original purchaser some two years after the original agreement to construct the home. The requirement of privity between the plaintiff and the defendant in implied warranty cases has been eroded by socioeconomic policy considerations in recent years. The doctrine was most seriously undermined by recognition by the courts of the development of mass marketing structures in which the manufacturer grew increasingly remote from the consumer through the development of intermediary dealers in products. Courts recognized that manufacturers created demand for their products through advertising in which they made representations of quality and fitness for particular uses. When, however, those representations proved to be false, manufacturers sought protection behind a wall of intermediary dealers who destroyed the chain of privity between the consumer who was injured by the product and the manufacturer who was responsible for its defective or dangerous condition. The requirement of privity was further eroded by the recognition that many products were designed for use by individuals who were not the purchasers. This doctrine was initially developed in a line of cases dealing with defective food and drink, but was eventually expanded to include products for intimate bodily use and finally to such things as automobiles; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69; and building materials; Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873; see, generally, Prosser, Law of Torts (4th Ed.) § 97.

Similar justification does not exist for the destruction of the privity requirement in the case at hand. This is not a mass marketing situation in which the defendant has attempted to insulate itself from liability behind a wall of intermediaries. Rather, the defendant contracted directly with the original purchaser and constructed the house for and sold it to the original purchaser, who subsequently sold it to the plaintiffs. A house which is not the product of a mass marketing scheme or which is not designed as a temporary dwelling differs from the usual item to which the principles of strict liability have generally been applied. It is not an item which generally changes owners or occupants frequently. A home is generally a long-term investment for a purchaser and it is not reasonable to impose strict liability on a builder-vendor who may not have reasonably been expected to anticipate a change in ownership.

Finally, we must turn to General Statutes § 52-563a. A determination that the builder-vendor should be liable to subsequent purchasers under an implied warranty theory for defective construction requires a policy determination that the builder-vendor should be held liable, regardless of fault, for economic losses. In other words, such a determination requires a judgment that the cost of such losses should fall on the class of builder-vendors. While that determination may properly be made by a court in the exceptional...

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  • Bloomfield Health Care Ctr. of Conn., LLC v. Doyon
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    • Connecticut Court of Appeals
    • October 9, 2018
    ...negligence action against defendant for misidentifying their garage as part of foreclosure property); Coburn v. Lenox Homes, Inc. , 173 Conn. 567, 574, 378 A.2d 599 (1977) (privity not required to bring negligence action; subsequent purchasers of home could bring negligence action against c......
  • J. Stiles, Inc. v. Evans
    • United States
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    ...an independent implied warranty of construction in a good and workmanlike manner include: Connecticut, Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599, 601 (1977) (uses Humber -like language), Vernali v. Centrella, 28 Conn.Sup. 476, 266 A.2d 200, 201-04 (1970) (recognizes independe......
  • Lamontagne v. EI Du Pont De Nemours and Co.
    • United States
    • U.S. District Court — District of Connecticut
    • December 7, 1993
    ...from his act or failure to act." Coburn v. Lenox Homes, 186 Conn. 370, 375, 441 A.2d 620 (1982); see also Coburn v. Lenox Homes, Inc., 173 Conn. 567, 575-76, 378 A.2d 599 (1977). Whether the defendant owed the plaintiffs a duty of care is an issue of law. Gordon v. Bridgeport Housing Author......
  • Zapata v. Burns
    • United States
    • Connecticut Supreme Court
    • May 17, 1988
    ...the contract between the architect or engineer and the owner, is a relatively recent development in the law. In Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977), we upheld a negligence action by a subsequent purchaser of a house against the defendant, who had furnished a defe......
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1 books & journal articles
  • Is There a Doctrine in the House?
    • United States
    • ABA General Library The Construction Lawyer No. 40-3, July 2020
    • July 1, 2020
    ...26. See Annotation, 74 A.L.R. 5th 523 & 75 A.L.R. 5th 413. 27. See Annotation, 75 A.L.R. 5th 413, § 3. 28. Coburn v. Lenox Homes, Inc., 378 A.2d 599 (Conn. 1977). 29. Id. at 603. 30. Memphis Asphalt & Paving Co. v. Fleming, 132 S.W. 222 (Ark. 1910). 31. Suneson v. Holloway Constr. Co., 992 ......

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