Recent Washington Cases Could Open the Door to Increased Liability

Construction Law Report Spring 2013

05/01/2013

Wendy J. Paris

It is well established in Washington that a tort claim for negligent construction is not allowed.  A plaintiff is limited to whatever remedies might be available under contract.  Compare that to Oregon, where courts recognize the tort of negligent construction allowing plaintiffs to bring negligence claims against a builder/contractor.

Washington’s economic loss doctrine prohibits plaintiffs from recovering purely economic damages in tort when plaintiffs’ entitlement to the damage is based in contract.  Alejandre v. Bull, 159 Wn.2d. 674, 683 (2005).  The economic loss rule seeks to bar recovery for alleged breach of tort duties where a contractual relationship exists and losses are economic (compared to personal injury or property damage).

In 2010, a trio of decisions in Washington appeared to have opened the door to allow tort claims where there is a contract.  Those cases recognize the “independent duty doctrine” as the basis for finding tort liability outside the contract, thereby allowing negligence claims.  The most important decision in the trio allowed homeowners to sue a construction professional under a tort theory.  The case involved a claim by a purchaser of a residence which was damaged by a large sinkhole.  The original owner hired a plumbing contractor to repair the waterline.  After the sale, a large sinkhole formed and was filled.  The sinkhole formed again and was not repaired and eventually burst, causing a landslide which damaged the home.  The second homeowner sued the plumbing contractor, and the contractor moved to dismiss, arguing that the economic loss rule barred recovery and, further, that no contractual privity existed.  The court rejected both arguments and allowed the suit to go forward.

Builders and developers should be aware that Washington courts now appear to recognize their liability for injury or damage to a third person as a result of negligent work, even after completion and acceptance of the work, when it is reasonably foreseeable a third person would be injured due to the negligence.  This is a substantial departure from the long-established rule limiting claims to breach of contract.  In 2012, in an unpublished opinion, the Court of Appeals found that a violation of a building code may be evidence of negligence.

In reviewing the application of the “independent duty” doctrine the courts appear to be limiting its application to claims arising out of construction on real property.  The lessons learned from these cases is that Washington appears more open to allowing negligent construction cases, either coupled with breach of contract actions or alone.  When evaluating claims in Washington, think outside the box to determine if there is an independent duty outside the contract, or if there is a violation of an applicable building code.  Washington may be moving closer to recognizing negligent construction just like its neighbor, Oregon, which will afford homeowners a greater ability to recover for construction defects.