Klos v. Gockel

• Decision Date: 14 October 1976
• Docket Number: No. 44150,44150
• Citation: 87 Wn.2d 567,554 P.2d 1349
• Parties: Stephen J. KLOS and Lois L. Klos, his wife, Respondents, v. Hilda R. GOCKEL, a single woman, Appellant, and Robert J. Gockel and Jane Doe Gockel, his wife and the marital community composed thereof, Defendants.
• Court: Washington Supreme Court

Page 567

87 Wn.2d 567

554 P.2d 1349

Stephen J. KLOS and Lois L. Klos, his wife, Respondents, v. Hilda R. GOCKEL, a single woman, Appellant, and Robert J. Gockel and Jane Doe Gockel, his wife and the

marital community composed thereof, Defendants.

No. 44150.

Supreme court of Washington, En Banc.

Oct. 14, 1976.

Bogle & Gates, John P. Sullivan, Bayard Crutcher, Seattle, for appellant.

Hageman, Prout, Kirkland & Coughlin, Richard L. Prout, Seattle, for respondents.

WRIGHT, Associate Justice.

This appeal arises from an action by home buyers against the builder-vendor. The patio area and backyard were damaged from a mud slide and the settling of fill. The issue herein is the extent of the rights and obligations arising from the implied warranty of habitability or fitness. The case of House v. Thornton, 76 Wash.2d 428, 457 P.2d 199 (1969) contains the basic statement of the law on that species of warranty, it being stated at page 436, 458 P.2d at page 204 that

when a vendor-builder sells a new house to its first intended occupant, he impliedly warrants that the foundations supporting it are firm and secure and that the house is structurally safe for the buyer's intended purpose of living in it.

This case requires that the above warranty be clarified as to the liability of an accasional builder of houses who constructs houses primarily for personal occupancy, but also with the idea that eventually the house might be sold.

The facts are as follows. Appellant's busband was a self-employed house builder in the Seattle area from 1947 until his death in 1969. The appellant was active in the family business as bookkeeper, planner and interior decorator. It was the practice of appellant's family to buy several lots in close proximity to each other, build on one lot, occupy the first house when finished, and remain long enough to complete houses on the remaining lots, and ultimately sell all of the houses.

When appellant's husband died, appellant expressed an intention to retire from the building business. However, appellant has continued on a restricted scale. She built 3 houses on Mercer Island, 2 of which were sold, and appellant was residing in the third house at the time of trial. Appellant's past building experience is relevant to the issue of whether appellant can be deemed a professional builder.

The first of the 3 houses constructed, which appellant lived in from August 1971 to July 1972, was purchased by the respondents in February 1973. Appellant acted as her own general contractor and subcontracted out the foundation, plumbing and electrical work. The house itself was small and built primarily to suit appellant's personal needs and tastes, as opposed to one built for speculation. ¹ Appellant did not originally contemplate selling the house. She occupied the house for a full year. During that time she suffered injuries on two occasions by falling on the stairs, and decided to sell that house and build a house on one level.

In January 1974, a portion of the slope below the rear wall of the house slid. The ground beneath the front patio settled causing cracks and an upending of the patio slabs. The house itself suffered extremely minimal damage. The lot had been excavated to accommodate the dwelling, and precautions were taken in laying the foundation by placing it on top of pilings. Only the excavated portion down the slope from the rear wall of the foundation slid.

After the slide, respondents requested appellant to restore the property to the condition at the time of sale claiming that under House v. Thornton, supra, any injuries to a new house were recoverable against the seller-builder thereof. Appellant denied any liability. Respondents went to trial and secured a $5,070 judgment against appellant, the trial judge finding, in part, that (a) appellant was an owner-developer-contractor of the house; (b) the slide, while not injuring the foundation itself, rendered the residence unfit for occupancy, if not in terms of actual danger, then at least in terms of threatening one's peace of mind; and (c) that respondents were the first purchasers-occupants of that dwelling.

Appellant appealed, assigning as error the findings that appellant was a commercial builder; that the house had been rendered uninhabitable; and that respondents were purchasers of a new home. Appeal was transferred to this court from the Court of Appeals.

The essence of the implied warranty of suitability or habitability requires that the vendor-builder be a person regularly engaged in building, so that the sale is commercial rather than casual or personal in nature. Bolkum v. Staab, 133 Vt. 467, 346 A.2d 210 (1975); Lyon v. Ward, 28 N.C.App. 446, 221 S.E.2d 727 (1976); Hartley v. Ballou, 286 N.C. 51, 209 S.E.2d 776 (1974). The Hartley case contains a somewhat more detailed statement of the requirements for such warranty than that which is contained in House v. Thornton, supra, 76 Wash.2d at 436, 457 P.2d 199. The court stated in Hartley, 286 N.C. at page 62, 209 S.E.2d at page 783:

(W)e hold that in every contract for the sale of a recently completed dwelling, and in every contract for the sale of a dwelling then under construction, the vendor, If he be in the business of building such dwellings, shall be held to impliedly warrant to the initial vendee that, at the time of the passing of the deed or the taking of possession by the initial vendee (whichever first occurs), the dwelling, together with all its fixtures, is sufficiently free from major structural defects, and is constructed in a workmanlike manner, so as to meet the standard of...