HERBERT H. BURGER AND JANICE M. BURGER, HUSBAND AND WIFE, APPELLANTS,
v.
F. N. HECTOR, APPELLEE

Fla. 1st DCA | 1973-06-07
No. R-451
CARROLL, DONALD K„ Acting C. J., ■ and RAWLS, J., concur.
278 So. 2d 636 Florida District Court of Appeal, First District (1973) Caution
Cited by 8 cases

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Synopsis

Homeowners sought damages from a builder for breach of an implied warranty of habitability after their house was damaged by water that ponded on their lot during unusually heavy rains. The court affirmed the trial court's judgment notwithstanding the jury verdict, holding that the builder's warranty extended to the house's construction, not to the suitability of the property itself.


Holding

The builder did not breach an implied warranty of habitability because the problem was with the lot selected by the buyers, not with the house constructed by the builder. The builder did not impliedly warrant that the lot would have adequate drainage or that water would not stand on it after unusually heavy rains or neighboring development.


Headnotes

[1] A building contractor is not liable for damages caused by an act of God or an unusual and extraordinary manifestation of nature that could not have been anticipated or ex…

[2] A contractor is not liable for defects in real property selected by the buyer, even if the contractor built a house on that property according to the buyer's plans and sp…

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Key Quotes

“the evidence conclusively demonstrated that any damages sustained by appellants on June 3, 1970, resulted from an unusual and extraordinary manifestation of the forces of nature that, under normal conditions, could not have been anticipated or expected by the appellee herein”

Establishes the trial court's finding that the damage resulted from extraordinary natural forces beyond the builder's responsibility

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Facts & Procedural History

In 1968, the Burgers selected a lot in a subdivision and hired Hector, a building contractor, to build a house according to plans they selected. The h…

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Opinion of the Court
JOHNSON, Judge.

JOHNSON, Judge.

Appellants seek reversal of a final judgment which granted appellee’s motion for a judgment notwithstanding the jury verdict of $1,800.00 in favor of the appellants.

This suit was instituted by appellants against appellee, a building contractor, to recover damages for the breach of an implied warranty of suitability of a home which appellee built for appellants. The evidence adduced at trial demonstrates that in 1968 appellants selected a lot in a subdivision and then selected appellee to build a house for them on said lot. Appellants selected a house plan submitted by appellee and the house was built in accordance with the plans. Some months after occupancy, land drainage problems became apparent. Appellants contended that when heavy rains came water would stand on their lot for an abnormally long period of time. The improvement and development of adjoining lots appeared to cause the problem of water running onto and standing on appellants’ lot to become worse.

On June 3, 1970, two years after occupancy, extremely heavy rains fell in Pensacola and the water ponded on appellants’ lot rose into their house, carrying mud with it, resulting in physical damage to carpeting, furniture, books and other personal effects. Appellants then brought this suit against appellee seeking damages for breach of an implied warranty of suitabili*637ty. The case went to a jury which returned a verdict awarding appellants $1,800.00. Thereafter, appellee moved for a judgment notwithstanding the verdict upon the grounds that, inter alia, the verdict was contrary to the law and the evidence in that the evidence conclusively demonstrated that any damages sustained by appellants on June 3, 1970, resulted from an unusual and extraordinary manifestation of the forces of nature that, under normal conditions, could not have been anticipated or expected by the appellee herein. It was further alleged that the appellants’ complaint was with the lot which they themselves had selected, that the home itself was suitable for human habitation arid that appellee never made any warranty, either directly or impliedly, regarding the lot upon which the house was constructed. The trial court granted said motion and we affirm.

Appellants rely upon the case of Gable v. Silver, 258 So.2d 11 (Fla.App. 4th, 1972), cert. discharged, 264 So.2d 418 (Fla.1972), to support their position that a contractor can be held liable for breach of an implied warranty that the completed house will be fit and suitable for human habitation. We have no quarrel with that position, and we fully agree with the holding of the Gable case as it applies to the factual situation therein involved. That case dealt with a faulty air conditioning system in a condominium originally owned by the builder. The court there held that the doctrine of caveat emptor would not be extended to foreclose implied warranties of fitness and merchantability in the sale of new condominiums.

The present case is easily distinguishable from the factual situation in Gable, supra. Here, the appellee built a house, according to plans and specifications selected by appellants, with good workmanship and materials on real property selected by the appellants. The problem was with the real property, after heavy rains and improvement of adjoining lots, and not with the house constructed by appellee. Appellee did not impliedly warrant that the appellants’ lot would have average or high percolation soil such as would withstand flooding waters, or that when the adjoining properties were cleared water would not stand on the lot for a longer than normal period. Hence, the jury verdict returned in appellants’ favor was contrary to the evidence and the law, and the trial court correctly entered a judgment in favor of appellee notwithstanding the verdict of the jury.

Affirmed.

CARROLL, DONALD K„ Acting C. J., ■ and RAWLS, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Conklin v. Faye Y. Hurley, 428 So. 2d 654 (Fla. 1983)
    …with a seawall. The cases which have dealt with the issue of extending implied warranties to unimproved lots have refused to extend the warranties because the damage was not caused by a defect for which the seller was responsible, Burger v. Hector, 278 So. 2d 636 (Fla. 1st DCA 1973); Witty v. Schramm, 62 Ill. App.3d 185, 19 Ill.Dec. 669, 379 N.E. 2d 333 (1978), or there were no crucial details or aspects inherent to the subject of the purchase which were beyond the buyer’s power to inspect. Cook, 279 Or. 333…
  • David v. B & J Holding Corp., 349 So. 2d 676 (Fla. 3d DCA 1977)
    …of law that implied warranties of fitness and merchantability extend to the purchase of new condominium units from builder-developers. Gable v. Silver, 258 So. 2d 11 (Fla. 4th DCA 1972), cert. discharged, 264 So. 2d 418 (Fla.1972); Burger v. Hector, 278 So. 2d 636 (Fla. 1st DCA 1973); Forte Towers South, Inc. v. Hill York Sales Corp., 312 So. 2d 512 (Fla. 3d DCA 1975). As the court explained in Gable, supra, at 17 in support of adoption of this rule: “Although the theory of implied warranty should not drasti…
  • Hesson v. Walmsley Constr. Co., 422 So. 2d 943 (Fla. 2d DCA 1982)
    …held that implied warranties of fitness and merchantability extend to the purchase of new homes or condominiums from builders. Whether the warranty extended to subsurface conditions was not an issue in Gable. The following year, in Burger v. Hector, 278 So. 2d 636 (Fla. 1st DCA 1973), the First District refused to extend the doctrine of implied warranty to a builder where damage to a new house was caused by the subsoil condition on the lot purchased separately by the owner. In recent years it has become more…

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