Elizabeth N. v. Riverside Group, Inc.

• Decision Date: 15 August 1991
• Docket Number: No. 90-864,90-864
• Citation: 585 So.2d 376
• Parties: ELIZABETH N., Appellant, v. RIVERSIDE GROUP, INC., a Florida corporation, Appellee. 585 So.2d 376, 16 Fla. L. Week. D2184
• Court: Florida District Court of Appeals

Page 376

585 So.2d 376

ELIZABETH N., Appellant, v. RIVERSIDE GROUP, INC., a Florida corporation, Appellee.

No. 90-864.

585 So.2d 376, 16 Fla. L. Week. D2184

District Court of Appeal of Florida,

First District.

Aug. 15, 1991.

Jay C. Howell of Anderson and Howell, Jacksonville Beach, for appellant.

Terry D. Bork of Boyd and Jenerette, Jacksonville, for appellee.

BARFIELD, Judge.

This appeal requires the determination of which statute of limitations applies to a claim for breach of an implied warranty of habitability of a new residence, where the buyer was raped in the residence. The trial court granted the defendant developer's motion for judgment on the pleadings, which asserted that the action was barred by section 95.11(3)(p), Florida Statutes (1984), because the personal injury occurred more than four years before the suit was brought. We affirm.

Appellant's complaint, filed on October 30, 1989, alleged that she had closed on the sale of a residential unit in the Raintree complex, which included "property, living structure and rights to the common elements of the property," and had moved in "on or about October 30, 1984," and that she was raped in her residence on November 27, 1984. She alleged that the defendant was aware of burglaries and sexual assaults on female residents in September and November 1984, that the defendant "acted as landlord for the residents of the complex" and "exercised control over the complex and the property of the individual residents through its control of the owner's association," and that the implied warranty of habitability upon the sale of the property obligated the defendant "to protect the residents of the complex from reasonably foreseeable criminal activity and to warn them in regard to previous criminal activity."

The trial court found that actions alleging a breach of the implied warranty of habitability are governed by the four-year "catch all" statute of limitations contained in section 95.11(3)(p), citing K/F Development and Investment Corp. v. Williamson Crane & Dozer Corp., 367 So.2d 1078 (Fla.3d DCA), cert. den., Williamson Crane & Dozier Corp. v. K/F Development & Investment Corp., 378 So.2d 350 (Fla.1979). ¹

Appellant argues that the proper limitations statute to be applied in this case is section 95.11(2)(b), which provides a five-year limitations period for a "legal or equitable action on a contract, obligation or liability founded on a written instrument," and that this specific statutory language precludes the possibility that the appropriate statute of limitations is the generally worded "catch all" four-year statute of limitations. She relies upon Long v. First Federal Savings and Loan Association of Citrus County, 497 So.2d 964 (Fla. 1st DCA 1986), in which this court held that the applicable statute of limitations for breach of an express warranty for sale of a house was five years. She asserts that the primary question is whether there is any difference between the statute of limitations applicable to a cause of action based upon an express warranty in a purchase and sale agreement for a residence and a cause of action based upon an implied warranty of habitability founded on a similar contract. She contends that Florida courts have established that legal obligations implied by law are actually parts of written contracts, relying in part on Heredia v. Safeway Trails, Inc., 369 So.2d 418 (Fla.3d DCA), cert. den., Safeway Trails, Inc. v. Heredia, 378 So.2d 348 (Fla.1979). ²

Appellee argues that the trial court properly relied on K/F Development and Investment Corporation in ruling that section 95.11(3)(p) governs actions based upon a breach of the implied warranty of habitability, and argues that cases dealing with products liability implied warranty actions also support the conclusion that this statute should govern implied warranty cases, citing Creviston v. General Motors Corporation, 225 So.2d 331 (Fla.1969); Putnam v. Roudebush, 352 So.2d 908 (Fla.2d DCA 1977); Smith v. Continental Insurance Company, 326 So.2d 189 (Fla.2d DCA 1976); Lauck v. General Telephone Company, 300 So.2d 759 (Fla.2d DCA 1974); and Barfield v. United States Rubber Company, 234 So.2d 374 (Fla.2d DCA), cert. den., United States Rubber Company v. Barfield, 239 So.2d 828 (Fla.1970). It distinguishes Long on the ground that it was based upon an express warranty which was clearly contractual in nature, and argues that rulings that legal obligations implied by law are actually parts of written contracts do not lead to the conclusion that an implied warranty action is governed by a contractual statute of limitations, asserting that the fact that the legal obligation is implied by law would indicate that the action is not truly contractual in nature. Appellee also distinguishes Heredia because it dealt with a breach of an implied obligation in a service contract to transport a passenger safely, an entirely different cause of action from the instant claim.

Appellant asserts that Putnam, cited by appellee for the proposition that products liability principles also govern cases dealing with the implied warranty of habitability, made no such sweeping statement, but merely stated: "If we are to extend implied warranties to condominiums, it seems logical to allow the condominium developer/seller the same defenses that we allow the manufacturer/seller in the products liability field." 352 So.2d at 909. She contends that the statute of limitations was not at issue in Putnam, and that Smith, Barfield, and Creviston are product liability cases which, unlike this cause of action, were not characterized by the presence of any contract, obligation, or liability founded on a written instrument. She cites Lochrane Engineering, Inc. v. Willingham Realgrowth Investment Fund, Ltd., 552 So.2d 228 (Fla. 5th DCA 1989), cert. den., Anderson v. Willingham Realgrowth Investment Fund, Ltd., 563 So.2d 631 (Fla.1990), a case involving inadequate sewage disposal systems, in which the court emphasized the contractual nature of the duties involved in a cause of action for breach of an implied warranty in the sale of a residential unit by a developer/seller, and Navahoe Circle, Inc. v. Development Concepts Corp., 373 So.2d 689, 692 (Fla.2d DCA 1979), involving a class action by condominium owners for negligence for a defective roof dismissed for lack of privity, in which the appellate court stated: "A warranty, whether express or implied, is fundamentally a contract. A contract cause of action requires privity."

Implied warranties were recognized in English courts by the early 19th century. ³ Suits for breach of warranty were first brought in tort as actions on the case for deceit, the breach treated as an offense against society rather than as a matter merely between private litigants. Warranty actions in assumpsit were not established until the close of the 18th century. "Because the law of warranty was merged into the law of contract at the time contractual principles had evolved into a well-developed body of formal rules, the influence of its own historical origin in tort were (sic) never fully assimilated." Sullivan, Innovation in the Law of Warranty, 32 Hastings L.J. 341, 352 (1980). ⁴

While express warranties were routinely enforced in the United States, implied warranties were slow to be recognized. With some exceptions, the general rule of law for the greater part of the 19th century was caveat emptor, which presupposes face-to-face dealing, relatively equal commercial experience, and a fair opportunity for the buyer to examine the goods. With mass production, this doctrine gradually receded and the notion of sellers' implied warranties of quality expanded. Id. at 353-58. The attempt to adapt contract and tort doctrine to changing economic conditions ultimately produced the modern law of products liability. Searching for a broadly based legal theory that would allow the imposition of liability on remote sellers outside the confining context of contract law, courts rediscovered warranty's origin in tort. In Jacob E. Decker & Sons Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (1942), a suit for implied warranty for processed meat, the Texas court "recognized a connection between modern economic reality and warranty's ancient foundations in tort." Sullivan, Innovation in the Law of Warranty, 32 Hastings L.J. 341, 364 (1980). The court noted that consumers in the modern marketplace cannot protect themselves, and stated that the warranty involved "is not the more modern contractual warranty but is an obligation imposed by law to protect public health." 164 S.W.2d at 831.

The necessity of revising real property law to accommodate the complexities of modern society has been recognized by many of the same jurisdictions that adopted products liability to protect the modern consumer. In Humber v. Morton, 426 S.W.2d 554 (Tex.1968), the Texas court found that a vendor-builder of a new home impliedly warrants that it was constructed in a good, workmanlike manner and is suitable for human habitation. The court held that under Texas law the implied warranty is a tort concept rather than a contract concept, citing Jacob E. Decker & Sons Inc. v. Capps. In Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314, 326 (1965), the court observed:

[The] contention that Caveat emptor should be applied and the deed viewed as embodying all the rights and responsibilities of the parties disregards the realities of the situation. Caveat emptor developed when the buyer and seller were in an equal bargaining position and they could readily be expected to protect themselves in the deed. Buyers of mass produced development homes are not on an equal footing with the builder vendors and are no more able to protect themselves in the deed than are automobile purchasers in a position to protect themselves in the bill of sale.

See Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972), for additional cites and a discussion of...