Navajo Circle, Inc. v. Development Concepts Corp.

• Decision Date: 13 June 1979
• Docket Number: No. 78-1434,78-1434
• Citation: 373 So.2d 689
• Parties: NAVAJO CIRCLE, INC., a Florida NonProfit Corporation, and Diane Zuppke, Appellants, v. DEVELOPMENT CONCEPTS CORPORATION, a Florida Corporation, W. R. Frizzell Architects, Inc., a Florida Corporation, Harborn Construction, Inc., a Florida Corporation, Jack Harborn, John K. Kontinos, George H. Bail, Charles E. Smith, and William R. Frizzell, Appellees.
• Court: Florida District Court of Appeals

Page 689

373 So.2d 689

NAVAJO CIRCLE, INC., a Florida NonProfit Corporation, and Diane Zuppke, Appellants, v. DEVELOPMENT CONCEPTS CORPORATION, a Florida Corporation, W. R. Frizzell Architects, Inc., a Florida Corporation, Harborn Construction, Inc., a Florida Corporation, Jack Harborn, John K. Kontinos, George H. Bail, Charles E. Smith, and William R. Frizzell, Appellees.

No. 78-1434.

District Court of Appeal of Florida, Second District.

June 13, 1979.

Rehearing Denied Aug. 3, 1979.

Wade H. Parsons and Karl L. Johnson of Nuckolls & Parsons, Fort Myers, for appellants.

Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee W. R. Frizzell Architects, Inc.

Howard A. Anderson of Aloia, Dudley & Roosa, Cape Coral, for appellees Jack Harborn and Harborn Construction, Inc.

BOARDMAN, Judge.

Appellants/plaintiffs, Navajo Circle, Inc., a condominium association, and Diane Zuppke, an owner of a unit in Navajo Circle, Inc., Condominium, brought a class action in negligence against appellees/defendants, W. R. Frizzell Architects, Inc., Harborn Construction, Inc., and Jack Harborn, among others. Appellants alleged that Frizzell Architects had negligently supervised the construction and subsequent repairs of the roof of a condominium building. They further alleged that Harborn Construction and Jack Harborn negligently constructed the roof causing damage to the roof, damage to the exterior and interior walls, and loss of rental receipts. These appellees filed a motion to dismiss. The trial court granted this motion finding that the complaint failed to allege privity between the parties.

Appellants argue on appeal that privity is not an essential element in this negligence action. We agree. Although privity is an element of a contract cause of action it is not of a tort.

The issue in any negligence action is whether the injury resulted from defendant's violation of a legal duty owed to the plaintiff. The threshold question, therefore, is whether these defendants have a legal duty to plaintiffs. "(T)he absence of contractual privity between plaintiff and defendant does not affect plaintiff's tort claim, provided plaintiff can establish the existence of a duty between the parties, and defendant's breach of such duty, with the proximate result that plaintiff suffered the damages of which it complains." Detweiler Bros., Inc. v. John Graham & Co., 412 F.Supp. 416, 419 (E.D.Wash.1976). See also Cooper v. Jevne, 56 Cal.App.3d 860, 128 Cal.Rptr. 724 (Ct.App.2d 1976).

The duty owed by a defendant to a plaintiff may have sprung from a contractual promise made to another; however, the duty sued on in a negligence action is not the contractual promise but the duty to use reasonable care in affirmatively performing that promise. The duty exists independent of the contract. Existence of a contract may uncontrovertibly establish that the parties owed a duty to each other to use reasonable care in performance of the contract, but it is not an exclusive test of the existence of that duty. Whether a defendant's duty to use reasonable care extends to a plaintiff not a party to the contract is determined by whether that plaintiff and defendant are in a relationship in which the defendant has a duty imposed by law to avoid harm to the plaintiff.

MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) spawned the universally recognized rule that a supplier of a product is liable for his negligence which may reasonably be expected to cause injury to another's interests if the product is defective. A supplier was not held to a duty to protect against every risk but only foreseeable, unreasonable risks. The duty to use reasonable care owed to those one may foreseeably come in contact with is not diminished simply because the injury resulted from conduct which constituted performance of a contractual obligation owed to another. See Mullray v. Aire-Lok Co., 216 So.2d 801 (Fla. 3d DCA 1968) Citing 38 Am.Jur. Negligence § 21.

The products negligence line of cases was relied on by our supreme court to expand liability in negligence to those who supplied services rather than products. A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973) Citing Audlane Lumber & Builders Supply, Inc. v. D. E. Britt Associates, Inc., 168 So.2d 333 (Fla. 2d DCA 1964). Where it is foreseeable that the plaintiff will suffer the injury sued on, the supplier of the service has a legal duty to use reasonable care to avoid unreasonable risks to that plaintiff in performance of his service. E. g., Geer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970) Cited in Conklin v. Cohen, 287 So.2d 56 (Fla.1973) and Cited in LeMay v. U. S. H. Properties, Inc., 338 So.2d 1143 (Fla. 2d DCA 1976). Foreseeability, the standard of care, and the character of the risk are determined by the reasonable-man test. Geer v. Bennett, supra. As in the products cases, privity of contract was not an element of a cause of action for negligent performance of a service. The defendant would be liable for the plaintiff's injury if the defendant's affirmative conduct in performance of a contractual obligation to provide services to another was the proximate cause of a foreseeable injury.

Any doubt that privity is not required to allege a cause of action for negligent performance of a contractual obligation was settled by A. R. Moyer, Inc. v. Graham. Although Sickler v. Indian River Abstract & Guaranty Co., 142 Fla. 528, 195 So. 195 (Fla.1940) may have demonstrated a judicial philosophy against expansion of tort liability, Moyer clearly indicated a change of direction by the supreme court. ¹

Moyer answered the certified question whether a cause of action was stated by a contractor for damages resulting from the negligent supervision by an architect where there was no privity of contract between the architect and the contractor. The court held that privity was not required in a negligence action. It stated that a party "who may foreseeably be injured or sustained an economic loss proximately caused by the negligent performance of a contractual duty of an architect, has a cause of action against the alleged negligent architect . . . ." Moyer, supra, at 402. The architect owed a general duty to those who would foreseeably...