Common Law Implied Warranties and Strict Liability
As the new year begins, and the legislative session draws near, the issue of common law implied warranties and the recent opinion in Lakeview Reserve Homeowners v. Maronda Homes, Inc., 48 So. 3d 902 (Fla. 5th DCA 2010), remain on the legislative agenda. Concerns are being raised as to whether Maronda creates a cause of action for “strict liability” against developers with regard to construction defect claims for improvements to subdivision common areas. For the reasons below it is my opinion that it does not and that my prior analysis as to why SB 1196 is a bad bill for homeowners remains accurate.
Under the existing case law, an implied warranty of fitness and merchantability:
– extends to the purchase of new homes, Gable v. Silver, 258 So. 2d 11 (Fla. 4th DCA 1972);
– means that a home will be constructed in accordance with the specifications contained in
the building plans filed with and approved by the appropriate governmental authority; David v. B&J Holding Corp., 349 So. 2d 676 (Fla. 3d DCA 1977);
– requires substantial compliance with plans and specifications approved by the governmental authority, of compliance with applicable building codes, and of fitness and merchantability. Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So. 2d 515 (Fla. 4th DCA 1981);
– the developer is also responsible for a subcontractor’s improper substitution of materials. Biscayne Roofing Co. v. Palmetto Fairway Condominium Association, Inc., 418 So. 2d 1109 (Fla. 3d DCA 1982);
– a developer is liable for failing to construct according to plans or in a workmanlike or acceptable manner. Schmeck v. Sea Oats Condominium Association, Inc., 441 So. 2d 1092 (Fla. 5th DCA 1983).
Under Florida law, the doctrine of “strict liability” applies to products, but does not apply to structural improvements to real property. Plaza v. Fisher Development, Inc., 971 So. 2d 918 (Fla. 3d DCA 2007).
Strict Liability (in the products context) means:
– negligence as a matter of law or negligence per se, the effect of which is to remove the burden from the user of proving specific acts of negligence; and
– is distinct from breach of implied warranty of merchantability, for injury to a user of the product or a bystander, West v. Caterpillar Tractor Company, Inc., 336 So. 2d 80 (Fla. 1976).
An action sounding in strict liability requires the plaintiff to prove that (1) a product (2) produced by a manufacturer (3) was defective or created an unreasonably dangerous condition (4) that proximately caused (5) injury. Edward M. Chadbourne, Inc. v. Vaughn, 491 So.2d 551 (Fla. 1986).
The Second DCA distinguished the two standards in rejecting a strict liability analysis, in the context of homes or condominiums, and determining that the implied warranty of fitness and merchantability did not extend to subsequent purchasers. Strathmore Riverside Villas Condominium Assoc., Inc. v. Paver Development Corp., 369 So. 2d 971 (Fla. 2d DCA 1979).
The court’s opinion in Lakeview Reserve Homeowners v. Maronda Homes did not create a new cause of action in “strict liability”, but only determined that the homeowners (and their association) could maintain an action for breach of the implied warranties of fitness for a particular purpose, merchantability, and habitability arising out of the defective design or construction of common areas which provide essential services to the homes.
Accordingly, the argument being that Lakeview Reserve Homeowners v. Maronda Homes creates a cause of action for “strict liability” against developers for common area improvements is simply not accurate.