Moxley v. Laramie Builders, Inc.

• Citation: 600 P.2d 733
• Decision Date: 27 September 1979
• Docket Number: No. 5108,5108
• Parties: Merle E. MOXLEY and Della F. Moxley, Appellants (Plaintiffs), v. LARAMIE BUILDERS, INC., Appellee (Defendant).
• Court: United States State Supreme Court of Wyoming

Page 733

600 P.2d 733

Merle E. MOXLEY and Della F. Moxley, Appellants (Plaintiffs), v. LARAMIE BUILDERS, INC., Appellee (Defendant).

No. 5108.

Supreme Court of Wyoming.

Sept. 27, 1979.

Jerome F. Statkus, Cheyenne, for appellants.

Walter Scott, Laramie, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

RAPER, Chief Justice.

The facts of Tavares v. Horstman, Wyo.1975, 542 P.2d 1275, did not require us to extend a builder-vendor's implied warranty of fitness for habitation as well as liability for negligent construction beyond the first owner. The facts of this case are appropriate for such a holding, and we will reverse the district court's dismissal of the appellants' complaint which sought such a remedy.

The plaintiffs-appellants' complaint against appellee-defendant alleged that the defendant, in 1975, constructed a home for Oliver B. Wickham and his wife. On April 15, 1977, the plaintiffs purchased this same home from the Wickhams as well as the land upon which it was located. Plaintiffs moved into the home and gradually became aware in June, 1977, that the electrical wiring on the premises was defective and dangerous and, as a result, in July, 1977, had it inspected by the State of Wyoming Department of Fire Prevention and Electrical Safety. ¹ It is claimed by plaintiffs that the wiring was planned, designed and installed by the defendant in an unlawful, careless and negligent manner by unlicensed electricians in September, 1975, for the original owner. It was also alleged that it was necessary to have the house rewired at a cost of $3,892.00 together with $20.00 expended for the cost of the state safety inspection. Punitive damages and attorney's fees were claimed as well. A jury was demanded.

The defendant filed a motion to dismiss. At the hearing, the court permitted the plaintiffs to amend the complaint in order to additionally allege a breach of implied warranty of fitness and habitability. The trial judge thereupon dismissed the complaint as amended upon the single ground that it failed to state a claim upon which relief can be granted. No other ground for dismissal is before us. Plaintiffs stood on their complaint and appealed.

When considering a motion to dismiss a complaint, pursuant to Rule 12(b)(6), W.R.C.P., on the ground that it fails to state a claim on which relief can be granted, the facts alleged in the complaint are admitted and the allegations must be viewed in the light most favorable to the plaintiffs. State Highway Commission v. Bourne, Wyo.1967, 425 P.2d 59. We therefore treat as true all the allegations of plaintiffs' complaint.

There are three questions:

1. Should the implied warranty of habitability established in Tavares be extended to a contractor, who is not a builder-vendor? We will answer, "yes."

2. Should the second or other subsequent purchaser of a home be accorded the benefits of the implied warranty of habitability established in Tavares ? We will answer, "yes."

3. Is a claim based on negligent construction available to these plaintiffs? We will answer, "yes."

In Tavares v. Horstman, supra, this court fully discussed the socio-economic background and reasoning behind abandonment of the doctrine of caveat emptor and its accouterments in the sale of a dwelling as out of harmony with more compassionate and understanding views. The mores of the day have changed and the ordinary home buyer is not in a position to discover hidden defects in a structure. A home buyer should be able to place reliance on the builder or developer who sells him a new home, the purchase of which in so many instances, is the largest single purchase a family makes in a lifetime. Courts will judicially protect the victims of shoddy workmanship. ² Consumer protection demands that those who buy homes are entitled to rely on the skill of the builder and that the house is constructed so as to be reasonably fit for its intended use. The average purchaser is without adequate knowledge or opportunity to make a meaningful inspection of the component parts of a residential structure.

We can find no reason not to apply the basic concepts leading to establishment of the rules of Tavares to builders generally, and to a purchaser subsequent to the first owner. As in Tavares, we must confine our rulings in this case to the facts alleged in the complaint. A full development of the law in this area has not taken place, though there are identifiable trends.

We can see no difference between a builder or contractor who undertakes construction of a home and a builder-developer. To the buyer of a home the same considerations are present, no matter whether a builder constructs a residence on the land of the owner or whether the builder constructs a habitation on land he is developing and selling the residential structures as part of a package including the land. It is the structure and all its intricate components and related facilities that are the subject matter of the implied warranty. Those who hold themselves out as builders must be just as accountable for the workmanship that goes into a home that a buyer or his successor or successors in interest expect to occupy in the years that thereafter follow, as are builder-developers.

Electric wiring enclosed within the framework of the home or covered by fixtures is expected to last and remain safe beyond the period of little more than two years disclosed by the timetable set out in the complaint. Absent some explanation to justify a different conclusion, it can be expected that at the end of such a short period, a home reaches a subsequent buyer without substantial change from the condition it was in at the time it was built, delivered to and possession taken by the first owner. We have no difficulty taking judicial notice of that fact, which we can do at this stage of the proceedings, since it is a matter not subject to any reasonable dispute. Rule 201, W.R.E. It is true that there is a point in time beyond which the implied warranty will have expired based on a standard of reasonableness as expressed in Tavares. However, we can only conclude that point is not exceeded under the facts here presented.

There is a paucity of precedent on the liability of a builder to a second buyer or owner. However, Barnes v. Mac Brown & Co., Inc., 1976, 264 Ind. 227, 342 N.E.2d 619, furnishes a reasonably workable rule. A builder's implied warranty of fitness for habitation runs not only in favor of the first owner but extends also to subsequent purchasers. However, this implied warranty is limited to latent defects which are not discoverable by the subsequent purchasers by reasonable inspection and which become manifest only after the purchase.

Coburn v. Lenox Homes, Inc., 1977, 173 Conn. 567, 378 A.2d 599, takes a different tack, perhaps because of exigencies created by a Connecticut statute which gave an implied warranty to the purchaser from the vendor on a newly constructed single-family dwelling for three years. That case was decided in the context of the review of a demurrer to a complaint which was sustained by the superior court. The court construed the statute to cover only the first purchaser and not one who bought...