Distinguished
Distinguished by Faber v. Ronald Chaffman General Construction, Inc., 186 Ohio App. 3d 778 (2010)
Id. That same reasoning is inapplicable to the instant situation, however.
The opinion
Clifford F. Brown, J.,
concurring. The only just result attainable in this case is the one reached in the superb analysis by Justice Locher eliminating privity of contract in a negligence action brought by a vendee of realty against the builder-vendor, thereby necessitating the overruling of the bad law and reasoning expressed recently in Insurance Co. v. Bonnie Built Homes (1980), 64 Ohio St. 2d 269 [ 18 O.O.3d 458 ]. The elimination of the privity of contract requirement places the syllabus law of this case in perfect harmony with products liability cases involving an action in tort based upon the theory of breach of implied warranty, whereby privity of contract is not required, as pronounced in Iacono v. Anderson Concrete Corp. (1975), 42 Ohio St. 2d 88 *6 [ 71 O.O.2d 66 ], and Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St. 2d 227 [ 35 O.O.2d 404 ].
Our decision today is as long overdue as the 1916 decision in MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382 , 111 N.E. 1050 , where the learned Judge Cardozo, writing for the court, in essence, held that privity of contract was not necessary for persons to recover for injuries resulting from a defectively manufactured wheel. This brings Ohio law finally within the first quarter of the twentieth century.
The arguments for requiring privity of contract for a negligence action against the builder-vendor involving realty but not requiring it for a negligence action involving personalty, result in hair splitting, creating distinctions without a difference, and ignoring reality.
The actual, unexpressed reason for proponents urging privity of contract as a necessary element in negligence actions involving realty is to create another roadblock for the plaintiff and to shield the wrongdoer from liability and responsibility to the ultimate victim who directly suffers a loss as a result of such tort.
Bad law no matter how recently created by this court, as in Bonnie Built Homes, supra, must be judicially eliminated as soon as possible in order to comport with our judicial oath of office “to administer justice without respect to persons.” R.C. 3.23. In accordance with this oath we must continue, as we have in the past several years, to erase judicially much bad law that has accumulated over many years.