Personal Injury from New Construction

Brien Roche

The so-called “modern view” says that defective original construction of a home which causes injury is actionable, provided the injuries from the work are foreseeable.  No big surprise Virginia has rejected that.  In Tingler v. Graystone Homes, Inc., 298 Va. 63, 834 S.E.2d 244 (2019) the court rejected the modern view.  

Personal Injury New Construction

The court relied upon Glisson v. Loxley which defines a tort as any civil wrong involving the violation of some duty imposed by general law or otherwise.  As such you must always look for the source of the duty.  In original construction the source of the duty is the contract.  A contract cannot be the basis for a personal injury claim.

As such in Tingler, when defective weatherproofing in a new home caused water leakage and mold growth resulting in injury, that could not be claimed.  The claim was in contract.  It was not in tort. 

However there is still some hope.  There is always legislative relief which may be forthcoming.  

If there are post-delivery failures then there may be a basis for a tort claim.  Of course if a homebuilder actually physically injures someone during the construction process by dropping a beam on them, then that is actionable.  Post-delivery conduct that is inherently or imminently dangerous which causes injury may be the basis for a claim.  Negligent repair may be the basis for a claim.  

Tingler

The Tingler case is a good example of Virginia’s obsessive fascination with the issue of duty, in addition where that duty comes from.  In reality where the duty comes from shouldn’t make any difference.  The analysis should simply be:  was there a duty, was there a breach of that duty and did that duty then cause injury.  

Under the Virginia analysis, in a product liability claim there could be no recovery for a breach of warranty.  A warranty is a contract.  A contract cannot be the source of a duty in tort. 

Under the analysis of this court, if a contractor builds a new home and the home collapses and kills everybody inside, there is no basis for an injury claim.  All you can claim is the value of your financial investment.  

That’s nothing short of being crazy.

Call, or contact us for a free consult. Also for more info on tort duties see the Wikipedia pages. Also see the post on this site dealing with tort duties.