Gamble v. Main, 15390
| Decision Date | 28 January 1983 |
| Docket Number | No. 15390,15390 |
| Citation | 300 S.E.2d 110,171 W.Va. 469 |
| Parties | James Ronald GAMBLE, et al. v. Morris G. MAIN, etc. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. The purchaser of a new home is entitled to an implied warranty of habitability
or fitness which requires that the dwelling be constructed by the builder in a workmanlike manner and that the property be reasonably fit for its intended use of human habitation.
2. The implied warranty of habitability or fitness does not extend to adverse soil conditions which the builder is unaware of or could not have discovered by the exercise of reasonable care.
Russell Jay Guthrie, McCamic & McCamic, Wheeling, for appellants.
Marc B. Chernenko, Barnes, Watson, Cuomo, Hinerman & Fahey, Wellsburg, for appellee.
The plaintiffs, James and Elizabeth Gamble, appeal from a final order of the Circuit Court of Brooke County denying their motion for a new trial. They contend that the trial court erred in refusing to instruct the jury on the theory of implied warranty of habitability or fitness in their suit against the builder of their home. They also argue that the trial court erred in giving the builder's instruction regarding his nonliability for undisclosed defects in soil conditions.
Many of the facts are not in dispute. In the fall of 1976, the Gambles contacted several home construction contractors, including the defendant Morris G. Main. They sought to have a home built on Brady's Ridge in Brooke County, and were willing to spend between $35,000 and $40,000. The Gambles had never previously been involved in constructing a residence, and had only a layman's understanding of the process of site selection and house construction. They sought Main's advice as to the suitability of the lot on Brady's Ridge as a homesite. The Gambles were contemplating purchasing the lot but had not done so when they and Main visited it. The lot was wooded and steeply sloped.
It is not disputed that Main advised the Gambles that the lot was suitable for a homesite and that Main determined the location of the proposed home inside the lot. Main's initial examination of the lot involved no tests of any kind, and consisted of a brief walk over part of the lot with the Gambles. Main asserts there was no indication of any slips or land movements on the lot at that time.
The Gambles purchased the lot, and on December 12, 1976, entered into a contract with Main for the construction of a home on the site for $40,500. Main subsequently constructed a home on the site in accordance with the specifications of the contract, and there is no allegation that the house is in any way defective. The dispute concerns the location of and the defective construction of the septic system, which included an absorption field.
The Gambles moved into the house in May of 1977. In April of 1978, they noticed a slip developing in the front yard of their residence and attendant seepage from the absorption field of their septic system. The Gambles called Main, who came to inspect the slip. Main did not offer to repair the slip, being of the opinion that it did not result from any defective construction done on the site, but, rather, that the slip was due to pre-existing natural forces.
On August 3, 1979, the plaintiffs filed suit, alleging that Main improperly installed their septic system, and improperly back graded their front yard around the septic system, which resulted in the aforementioned slip.
At trial, various opinions were offered as to the cause of the slip. It was generally accepted by all the parties, however, that the movement of the earth in the Gambles' front yard had seriously damaged their septic system.
The Gambles retained Johnson McKinley, a civil engineer and the president of a construction firm, as an expert witness. McKinley testified that prior to trial he had examined the site and made calculations based upon his measurements and observations. He stated that he was familiar with the State and county regulations regarding the installation of septic systems, having constructed several systems similar to the Gambles'. When asked whether or not the septic system as installed in the Gamble property was in compliance with State and county requirements, McKinley indicated that it was not. He also stated that the septic system and the rough back grading around it in the front yard were not accomplished in a "first class workmanlike manner" as required by the contract. 1 In McKinley's opinion, the slip in the Gambles' front yard was caused by a combination of improper compaction of fill material during rough back grading around the septic system and the improper installation of the septic system's absorption field, which contributed to the moisture content in the ground.
Main and his witnesses stated there were no observable defects in the soil where the septic system was installed. They disputed the plaintiffs' expert's theory that improper compaction existed. Their testimony was to the effect that in a proper installation of a septic system the soil should not be compacted as this precludes proper drainage or percolation in the system. It was the defendant's view that the slip was due to pre-existing natural causes which the construction of the house and septic system in no way affected. Main also was of the opinion that the Gambles had not planted adequate vegetation to stabilize the front yard.
The trial judge refused Plaintiffs' Instruction No. 2 on the ground that its statement of the law was inapplicable to the facts of the case. This instruction presented the legal theory that Main had impliedly warranted the suitability of the Gambles' building site. 2
In response to the Gambles' appeal, the contractor Main makes several arguments. First, he argues that there is no implied warranty of habitability in this jurisdiction in the sale or construction of a new home. Second, he asserts that even if such a warranty exists, it should not apply in this case because the lot had been purchased before Main started to build. Finally, Main asserts that where the lot has already been purchased by the homeowner, the builder should not be held liable for soil defects which are latent in the sense that they could not be discovered prior to or in the course of the construction.
In our recent case of Thacker v. Tyree, 171 W.Va. 110, 297 S.E.2d 885 (1982), we considered a related question and concluded that the vendor of real estate had a duty to disclose to the purchaser a material latent defect of which he was aware. 3 In note 2 of Thacker we referred to the implied warranty of habitability as follows:
The basis for the judicial imposition of such an implied warranty has come about for several reasons. First, there is the recognition that in a building contract there is ordinarily an implied warranty that the construction will be done in a workmanlike manner and, consequently, the doctrine of caveat emptor does not apply. We acknowledged this law in Thacker, supra at 887:
After the implied warranty principle was developed in a construction contract context, courts next recognized that the same type of an implied warranty ought to be available to the purchaser of a new home even when the purchaser had no construction contract with the builder-vendor. The reasons for the extension of the warranty were perhaps best summarized by the New Jersey Supreme Court in McDonald v. Mianecki, 79 N.J. at 287-89, 398 A.2d at 1289-90:
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