Simmons v. Owens, HH-323

• Decision Date: 13 September 1978
• Docket Number: No. HH-323,HH-323
• Citation: 363 So.2d 142
• Parties: Stanley H. SIMMONS and Jane Anne Simmons, Appellants, v. Billy OWENS, Appellee.
• Court: Florida District Court of Appeals

Page 142

363 So.2d 142

Stanley H. SIMMONS and Jane Anne Simmons, Appellants, v. Billy OWENS, Appellee.

No. HH-323.

District Court of Appeal of Florida, First District.

Sept. 13, 1978.

Rehearing Denied Oct. 31, 1978.

Terry P. Lewis, Tallahassee, for appellant.

Carl R. Pennington, Jr., and Davisson F. Dunlap, Jr., of Pennington, Wilkinson & Sauls, Tallahassee, for appellee.

MILLS, Acting Chief Judge.

The Simmons filed a complaint against Owens alleging that: Owens, a building contractor, constructed and sold a house to Snead; Owens negligently constructed the house contrary to the City of Tallahassee building code in that the clearance between the wood siding on a portion of the house and the ground was less than six inches; the defect was a latent defect which was not discoverable by reasonable inspection and was not discovered by Snead; the Simmons purchased the house from Snead; the latent defect was not readily discernable and was not discovered upon reasonable inspection by the Simmons; as a proximate result of Owens' negligence, the Simmons' house was damaged by water rot and termite infestation. They sought damages.

Owens moved to dismiss the complaint for failure to state a cause of action. The trial court granted the motion because the complaint failed to allege facts disclosing a dangerous condition or unreasonable risk to third persons. The Simmons appeal contending the trial court erred. We agree and reverse.

The general rule is that a building contractor is not liable for injuries to third parties occurring after he has completed a building and it has been accepted by the owner. Slavin v. Kay, 108 So.2d 462 (Fla.1959). This rule is subject to the exception that a contractor is not relieved of liability where he creates a dangerous condition or unreasonable risk which is latent and not discoverable by reasonable inspection. Slavin, supra.

In Forte Towers South, Inc. v. Hill York Sales Corp., 312 So.2d 512 (Fla.3d DCA 1975), the initial building owner brought suit against the contractor for negligent construction. It was alleged that the contractor negligently installed an air conditioning system. The defect was latent and was not discoverable by reasonable inspection. The Court concluded that a jury issue was raised as to whether the contractor was liable for damages to the building. There is no logical reason why this rule should not apply to a subsequent purchaser of the building.

The facts alleged in the complaint before us disclose a latent dangerous condition or unreasonable risk created by the contractor. Because Owens failed to comply with the City of Tallahassee building code, he created a latent condition or risk in the structure of the house that later caused water rot and termite infestation. Due to the negligent construction of the house it was damaged and repairs were required. These allegations state a cause of action. What the proof will show at subsequent discovery proceedings or at trial we do not know. But we are not concerned with that at the pleading stage.

Owens argues that no right of action exists in favor of a remote purchaser of a used house against the original contractor. The cases relied on by Owens are not applicable to the case before us. Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), holds that the first purchaser of a new house may sue the contractor for breach of implied warranties of fitness and merchantability. Oliver v. City Builders, 303 So.2d 466 (Miss.1974); Utz v. Moss, 31 Colo.App. 475, 503 P.2d 365 (1972) and Duncan v. Schuster-Graham Homer, Inc., 563 P.2d 976 (Colo.App.1977),...