holding that privity of contract is not an element in a negligence action brought by a vendee against a builder-vendor
How later courts described this case
- holding that privity of contract is not an element in a negligence action brought by a vendee against a builder-vendor
Written by the judges who cited it.
The opinion
William B. Brown, J.,
dissenting. Notwithstanding the negligence of a defendant, a plaintiff can lose in a negligence *272 action if the defendant owes the plaintiff no duty of care. Over the years, either because of policy or precedent, courts have employed such “no-duty” rules in order to shield admittedly negligent defendants from liability to specified plaintiffs in certain circumstances. The majority’s holding herein, i.e., that privity of contract is required for an owner of a real property structure to bring an action in negligence against a builder-vendor, is one such no-duty rule. In my view, there is no justification for a no-duty rule in the circumstances presented.
The seminal precedent for such no-duty rules is of course Winterbottom v. Wright (1842), 10 M. & W. 109, 152 Eng. Rep. 402. Since Winterbottom v. Wright, supra, many courts have excepted from or abandoned this impolitic rule in various circumstances. See, e.g., MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382 , 111 N.E. 1050 . As I understand the case law in this area, courts have repudiated the “no-duty” rule unless policy considerations justify its circumstantial application. Such judicial hostility to the no-duty rule is understandable since the no-duty rule is inconsistent with the essential basis of the negligence action, viz., that individuals generally have a duty to exercise due care at all times.
The majority’s policy reason for the application of a no-duty rule herein, in my opinion, is suspect. The majority asserts that “[a] builder-vendor should not be required to act as an insurer for subsequent vendees.” Surely, to hold that a subsequent vendee (or any third party) can bring an action in negligence against a builder-vendor is not equivalent to holding that such builder-vendor is an underwriter against economic loss not proximately caused by its negligence.
In my view, the sounder approach is to permit the subsequent vendee to maintain its action in negligence against the builder-vendor. In such an action, the liability standard (due care) would of course be sensitive to all the legislative (socioeconomic) and judicial facts and circumstances.
For the foregoing reasons, I must respectfully dissent.
Celebrezze, C. J., and Locher, J., concur in the foregoing dissenting opinion.