Quality Court Condominium Ass'n v. Quality Hill Development Corp.

• Decision Date: 18 May 1994
• Docket Number: No. 93-201-A,93-201-A
• Parties: . QUALITY HILL DEVELOPMENT CORPORATION et al. Supreme Court of Rhode Island
• Court: Rhode Island Supreme Court

Page 746

641 A.2d 746

QUALITY COURT CONDOMINIUM ASSOCIATION v. QUALITY HILL DEVELOPMENT CORPORATION et al.

No. 93-201-A.

Supreme Court of Rhode Island.

May 18, 1994.

Mortimer C. Newton, Providence, for plaintiff.

Christopher Fay, City Sol., Pawtucket, for defendant.

OPINION

MURRAY, Justice.

This case came before this court on the appeal of the defendant, the city of Pawtucket (city), from a judgment on a Superior Court jury verdict in favor of the plaintiff, Quality Court Condominium Association (Quality), in the amount of $69,463.

The facts underlying this dispute are as follows. In August 1988 Quality filed a complaint against several defendants in Superior Court, seeking damages associated with the improper construction of certain condominiums located in the city. Quality is composed of a group of the condominium's unit owners. The original suit was brought against Quality Hill Development Corporation, the seller of the condominiums; Welch Corporation, the builder; Christine Tague, as treasurer of the city; and four other defendants who were subsequently dismissed from the case.

In its complaint Quality alleged that the condominiums were not constructed in a workmanlike manner and that defendants failed to repair damage that Quality had requested be fixed. Quality also asserted that the building inspectors for the city were negligent in failing to inspect the condominiums properly and in approving construction work that was in violation of state building-code requirements.

The matter was subsequently assigned to the Superior Court Arbitration Unit. The court-appointed arbitrator awarded Quality $71,007. The city rejected the award, and the case proceeded to trial. We summarize the facts adduced at trial insofar as they are pertinent to the city. We note that the record represents what may be described as a first-time homeowner's worst nightmare.

Several condominium owners testified at trial regarding a myriad of problems that they experienced with their units soon after their purchase. Elizabeth Healy (Healy) testified that she purchased her unit in August 1986 for $92,000. She stated that her problems began the day before the closing, when she discovered water in her basement. In February 1987 she came home one evening and "my dining room table * * * was covered with water * * *. I put the light on and the water was pouring out of my light fixture and you could hear the water running right in the walls like a waterfall * * * and water was coming out [of] the light fixture at the front door." These water problems also surfaced in other areas. She described "drastic" leaks in her roof, from which leaking water damaged carpets, ceilings, and closets. Healy also stated that the floor in her unit tilts downward and that a supporting wall had to be installed across the middle of her basement to prevent further damage. She described cracks in her ceilings, walls, and kitchen formica. She added that her unit has been repainted on three occasions, yet water damage is still visible.

Robert Girouard (Girouard) testified that he also purchased his unit in August of 1986. Girouard testified that he had many concerns regarding the construction of his unit. He stated that he spoke to Todd Olbrych (Olbrych), a city building inspector, when Olbrych was inspecting Girouard's unit in November 1986. Girouard testified that Olbrych informed him he was at the site to "issue letters of certificates of occupancy." Girouard also averred that Olbrych informed him it was "obvious" that the city could not issue a certificate of occupancy because the "unit was not ready." Girouard testified that he pointed out to Olbrych problems with the floor joists in the basement, water leaks, ceiling stains, and joist spans in excess of fourteen feet. ¹ Girouard testified that in spite of his pointing out the problems and Olbrych's initial comments, Olbrych stated that "the plans were stamped by the architect and that * * * he [had] to go by the stamp of the architect."

Upon moving into the premises, Girouard testified that he experienced problems similar to those that Healy described, and in addition he noted that his floors did not appear to be nailed down properly. He stated that his floors and his staircases began to "sag" and "everything seemed to be running towards the center of the unit." Girouard and several other unit owners testified that they repeatedly complained to the builder and to the seller of the condominium to correct the problems; however, they were not corrected.

Olbrych testified that as the city building inspector one of his responsibilities was to enforce the Rhode Island State Building Code. He testified that he inspected the Quality Court Condominiums. He stated that he was concerned about the span of the joists that Girouard had pointed out; however, "[i]t was approved by the architect as being structurally sound." He averred that the building code requires that the city "take the architect['s] stamp; so we did." ² He stated that on the day he inspected Girouard's unit, he did not find any "serious" code violations.

Robert Hunt (Hunt), a state building official, did not agree with Olbrych's view of the premises or his understanding of the responsibilities of a municipal building inspector. Hunt testified that one of the responsibilities of a municipal building inspector is to issue building permits to ensure that the plans for construction meet the requirements of the state building code. If the inspector finds a violation of the state building code, Hunt explained, it is his or her responsibility to notify the building's owner of the violation. Hunt explained that an architect's stamp signifies that an architect is duly qualified and licensed to make architectural drawings. Hunt explained that a building inspector does not rely on the stamp "for anything."

As a result of a complaint filed by Quality with the Attorney General's office, Hunt made an inspection of the condominiums in July 1987. He testified that he made his inspection along with a representative from the Attorney General's office, a representative of the city building inspector's office, the city's director of public works, and several of the unit owners. He testified that he inspected about six to eight units. He stated that he found at least seven separate building-code violations that were common to all the units that he inspected. He found that the building was constructed too low in the ground, that the floor framing was overstressed, and that although the maximum stress level of the floor joists was fourteen feet, the joists were overstressed to seventeen feet. He also testified that he found other violations that were unique to specific units. By letter, Hunt notified the Attorney General's office and the city of the building-code violations.

Subsequent to Hunt's inspection another meeting was arranged with the Attorney General's office, the builder of the condominiums, the architect, and Olbrych. The purpose of the meeting was to discuss and attempt to rectify the code violations that Hunt had uncovered. Olbrych stated that the architect was to "draw up corrective action * * * to remedy the situation." He testified that he returned to the condominiums "on several occasions" to view the proposed repair work. He stated that he informed his supervisor in December 1987 that all the units were in compliance with the building code.

Olbrych further testified that he had inspected all the units with respect to each violation identified by the state building inspector. Quality believed that this testimony differed from a statement that Olbrych had made during the court-annexed arbitration hearing. Quality was permitted to call the arbitrator to testify regarding Olbrych's arbitration testimony. The arbitrator testified that, during the arbitration hearings, Olbrych stated that he checked some of, but not all the units for compliance with the building code.

Olbrych also testified that as a proposed solution to the floor-joist violation noted by Hunt, two lolly columns had been installed in all the units to support the overstressed floor joists. The architect contradicted this testimony by stating that lolly columns were not installed in all the units. Quality's expert witness in construction also testified that he visited the condominiums in January 1991 and found that the floor joists were still not properly supported and that lolly columns had not been installed in all the units. Additionally he noted that the problem with the sagging floors remained. Girouard stated that he never saw Olbrych return to his unit to inspect the floor joists.

The city contends that the trial justice erred by (1) denying the motion for a directed verdict and instructing the jury that the city could be held liable for the negligence of its building inspector and (2) permitting the arbitrator to testify at trial to statements made by a witness during an arbitration hearing.

It is well settled that in reviewing the propriety of a trial justice's decision to grant or to deny a motion for a directed verdict, this court is bound by the same standard as the trial justice. Marcotte v. Harrison, 443 A.2d 1225 (R.I.1982). This court views all the evidence in the light most favorable to the adverse parties, draws all reasonable inferences therefrom, and refrains from weighing the evidence and passing upon the credibility of the witnesses. Palmisciano v. Burrillville Racing Association, 603 A.2d 317 (R.I.1992). If there exist issues upon which reasonable persons could draw different conclusions, the motion for a directed verdict should be denied. Id. at 320.

According to the public-duty doctrine, Rhode Island government entities enjoy immunity from tort liability arising out of their discretionary governmental actions that by their nature are not ordinarily performed by private persons. Haley v. Town of Lincoln, 611 A.2d 845, 849 (R.I.1992). The rationale...