Traditionally, in construction defect claims (non-products claims) there is a fairly well defined slate of legal theories to be plead. They include claims of negligence, breach of the implied warranty of workmanship, breach of the statutory warranty found in the New Home Warranty Act (for residential claims) and breach of contract claims. Typically breach of contract claims can come in two varieties: Claims for out-right breach of contract relative to an expressed provision or condition of a written or oral contract, or breach of an expressed warranty contained in the contract, itself (e.g., “Builder warrants that the work will be done in a good and workman-like manner” or “Builder warrants that the work will conform with the design plans and specifications for the project”). Each of these theories and causes of action are discussed below:
Negligence
A claim for negligence requires proof of duty, causation, and damages. The following are the duties owed in Mississippi by those in the construction industry:
(1) Contractor – build in a “good and workmanlike manner”
(2) Project designers – (engineers and architects)-duty to use the care, skill and diligence ordinarily exercised by architects and engineers under like circumstance in the area in designing the project and in carrying out their duties to administer the construction contract, including observations and approval of the work by contractors and subcontractors
(3) Component Supplier-use reasonable care in the manufacture of component products
Negligence per se (i.e. the violation of building codes) removes the duty aspect of a negligence claim. See Thomas v. McDonald, 667 So. 2d 594, 597 (Miss. 1995) (In order for violation of building codes to constitute negligence per se, Plaintiff has burden to show that he/she is member of class that code was designed to protect and that the harm suffered was the type of harm that code was intended to prevent)
BREACH OF IMPLIED WARRANTIES
Implied Warranty of Habitability
Implied Warranty of good workmanship – George G. Gilmore v. Garrett, 582 So. 2d 387 (Miss. 1991) (Where a person contracts to do certain work he is charged with the common-law duty of exercising reasonable care and skill in the performance of the work required to be done by the contract, and the parties may not substitute a contractual standard for this obligation . . .Accompanying every contract is a common law duty to perform with care, skill and reasonable experience, and a negligent failure to observe any of these conditions is a tort as well as a breach of contract . . . One who engages in a business, occupation or profession represents to those who deal with him in that capacity that he possesses the knowledge, skill and ability, with reference to matters relating to such calling, which others engaged therein ordinarily possess. He also represents that he will exercise reasonable care in the use of his skill and in the application of his knowledge and will exercise his best judgment in the performance of work for which his services are engaged, within the limits of such calling.) 582 So. 2d 387, 391-92 (Miss. 1991)
BREACH OF CONTRACT
Elements: Contractual obligation, breach, causation and damages
Specific provisions/warranties to look for: (1) “Build per specifications”, (2) “Build in good and workmanlike manner”, (3) “Responsible for correcting defects in materials and workmanship” (Example: AIA Document A201-1997 General Conditions, Article 3.1.2, 3.3.1, 3.3.2, 3.3.3 and 3.4.3)