Iverson v. Solsbery, 81CA0020
| Decision Date | 11 February 1982 |
| Docket Number | No. 81CA0020,81CA0020 |
| Parties | William C. IVERSON and Geraldine M. Iverson, Plaintiffs-Appellants, v. Nita M. SOLSBERY, Defendant-Appellee. . III |
| Court | Colorado Court of Appeals |
Nuss & Braden, P. C., Ralph A. Braden, Jr., Colorado Springs, for plaintiffs-appellants.
Mason & Davis, Robert J. Mason, Colorado Springs, for defendant-appellee.
Plaintiffs, William and Geraldine Iverson (Iversons), appeal the trial court's entry of summary judgment in favor of defendant, Nita M. Solsbery, on their tort claim alleging non-compliance with the building code, and on their claim of fraudulent misrepresentation in connection with improvements made by defendant on real property which was ultimately sold to plaintiffs. We reverse.
In 1978, Solsbery owned a parcel of real property in Colorado Springs upon which was located a four unit multi-family complex with a utility-laundry room. Solsbery converted the utility room into a fifth apartment unit. It is undisputed that these improvements were done without a building permit and that the work done violated the Colorado Springs Building Code.
In February of 1978, Solsbery sold the property to one Noblett. Approximately six months later, Noblett conveyed the property to the Iversons. Upon inquiry to the building department, the Iversons learned that a building permit had not been obtained by Solsbery for the fifth unit conversion, nor had a certificate of occupancy been issued for that unit. An inspection by the department revealed several items of noncompliance with the building code. The Iversons, upon the department's demand, caused corrective work to be done on the fifth unit in order to meet the code requirements and sued Solsbery to recover the $9,500 spent on that remedial construction.
The Iversons' complaint alleged tortious conduct in connection with the original improvements made and misrepresentation in the sale of the property. The trial court, prior to trial and based on the undisputed facts, granted Solsbery's motion for summary judgment of dismissal as to each claim on the basis that there was lack of privity of contract between the Iversons and Solsbery and because it concluded that Solsbery's duty on any tort theory was "questionable."
Under the undisputed facts alleged in this case we hold that the Iversons' lack of privity of contract with Solsbery does not preclude their right to recover.
Both of the Iversons' claims sound essentially in tort. In tort actions liability attaches to a wrongdoer, not by virtue of a failure to perform a contractual obligation, but because a duty of care has been breached. Schnell v. Gustafson, Colo., 638 P.2d 850 (1981) (as to misrepresentation); Wright v. Creative Corp., 30 Colo.App. 575, 498 P.2d 1179 (1972). Consequently, the existence of privity is irrelevant to the Iversons' right to recover on either claim.
Iversons contend that Solsbery's conduct, being violative of the building code, was tortious because it constituted negligence per se. We agree that Solsbery's conduct was tortious, not, however, because it involved conduct which was negligent, per se or otherwise but rather because it amounted to an intention of tort.
Violation of a statute or ordinance constitutes negligence per se only if the injured party is a member of the class such statute or ordinance was designed to protect, and if the injury is of the type sought to be protected against. Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64 (1935). The purpose of the Colorado Springs' Building Code is generally to protect the public from injuries resulting from substandard or unsafe construction. (Colorado Springs Municipal Code § 16-1-102). And, here, the Iversons' costs expended in bringing the building into compliance, although constituting real and substantial damages, was not basically the type of injury that the building code was designed to prevent or guard against.
That Solsbery's conduct did not constitute negligence per se does not, however, resolve the issue of whether Solsbery's conduct was tortious in that she owed a duty to the Iversons when she remodels in such a way as to violate the applicable building code, and whether that duty was breached. To answer that question, we must look to the basic concept of tort law itself.
Torts generally are defined as wrongful acts, not involving breach of contract, which result in damage to another. See Newt Olson Lumber Co. v. School District No. 8, 83 Colo. 272, 263 P. 723 (1928). Essentially, tort law enforces the duty of each person not to act in such a fashion as to cause injury to another. Negligence, per se or otherwise, is merely a way of proving that such a duty has been breached. Roessler v. O'Brien, 119 Colo. 222, 201 P.2d 901 (1949).
We must here determine whether an owner of real property owes a duty to future owners not to construct or remodel in such a way that the property is in direct violation of the applicable building code, and if so, whether a breach of that duty which results in damage to the violator's successors in...
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