630 A.2d 1381 | Conn. Super. Ct. | 1993
The issue presented is whether the court should grant the motion of the defendant Doris DeWees for summary judgment on counts fourteen and fifteen of the plaintiffs' complaint on the grounds that: this defendant did not owe a duty to the plaintiffs; the federal regulations do not authorize a private cause of action; and the plaintiffs have not alleged sufficient *518 facts to sustain an action under the Connecticut Unfair Trade Practices Act (CUTPA). The court denies the motion as to both counts.
The plaintiffs, Bruce and Helene Tackling, individually and as father, mother and next friends of their minor children Jessica, Nicholas and Joseph Tackling, filed a nineteen count revised complaint on August 21, 1992. The action arises out of a real estate transaction in which the plaintiffs purchased a home containing lead paint. The plaintiffs allege in counts fourteen and fifteen that DeWees performed an inspection on the plaintiffs' property as required in order for the plaintiffs to receive a Federal Housing Authority (FHA) insured mortgage loan through the federal department of Housing and Urban Development (HUD).
They allege further that as part of the process and procedure of providing financing, as required by HUD/FHA guidelines, it was necessary that an appraisal be done to establish the value of the residence, and that the defendant McCue Mortgage Company hired DeWees to perform the necessary inspection of the property that the plaintiffs sought to purchase. The plaintiffs also allege that: the appraisal was paid for by them; DeWees knew or should have known that the plaintiffs had three small children; and that the residence contained lead-based paint on its interior and exterior surfaces which was peeling, chipping and cracking. As a result of the negligent appraisal by DeWees and in violation of the HUD/FHA guidelines, the plaintiffs allege, they obtained the mortgage loan from HUD/FHA and McCue, purchased their residence at a price far above its real fair market value, and that the Tackling children ultimately became exposed to dangerous, toxic and poisonous paint with a base greater than six hundredths of one percent lead. *519
The plaintiffs allege in count fourteen that DeWees was negligent in performing her inspection. In count fifteen the plaintiffs allege that the actions of DeWees violate General Statutes §
DeWees then filed the present motion seeking summary judgment on counts fourteen and fifteen of the plaintiffs' complaint. The plaintiffs filed a memorandum of law in opposition to DeWees' motion and the parties were heard.
A moving party is entitled to summary judgment if the party proves the nonexistence of material facts and that the party is entitled to judgment as a matter of law. Practice Book § 384.
DeWees argues that she is entitled to summary judgment on count fourteen of the plaintiffs' complaint because there was no privity of contract between her and the plaintiffs, and therefore, she asserts that the section of the National Housing Act that requires an appraiser to "inspect the dwelling for defective paint surfaces"; 24 C.F.R. § 5200.805; does not provide the plaintiffs with a private cause of action.
The plaintiffs base their claim in the fourteenth count of their complaint on the common law theories of negligence and negligence per se. Despite DeWees' assertion, the plaintiffs do not contend that the Federal Housing Act provides a private cause of action.
In order to recover damages in negligence, a plaintiff must prove that the actor owed a "duty of care to the victim, which was breached by the actor's failure to meet the standard of care arising therefrom and that the breach was the proximate cause of actual harm suffered by the victim." Coburn v. Lenox Homes, Inc.,
Although the appellate courts of Connecticut have yet to address the issue of an appraiser's liability to third parties, the courts have examined the liability of other professionals in similar relationships.
In Coburn v. Lenox Homes, Inc.,
In Zapata v. Burns, supra, 516-17, the court recognized that the negligence standard previously discussed and applicable to builders and contractors, logically extends to architects and engineers. Furthermore, such liability, regardless of privity, has been extended to attorneys; Krawczyk v. Stingle,
Other courts have held appraisers liable to third parties. See Larsen v. United Federal Savings Loan Assn.,
The court concludes that the negligence analysis applied to contractors, builders, architects and surveyors logically extends to appraisers. Whether the appraiser owed a duty to use care to the plaintiffs in the present case depends upon the resolution of the issue of foreseeability, which involves a two-tier inquiry: (1) is it reasonably foreseeable that the plaintiffs would rely on the appraiser's report; and (2) is it reasonably foreseeable that harm of the general nature of that suffered would result if the duty to use care was not exercised. See Coburn I, supra, 575-76.
The plaintiffs allege in their complaint that DeWees was selected and hired by McCue, HUD and the FHA to perform the appraisal of the residence. The plaintiffs allege further that such inspection was required by HUD/FHA guidelines and that DeWees knew or should have known that the plaintiffs had one child under six years of age and that the plaintiff wife was in her third trimester of pregnancy. The plaintiffs also allege that they paid for the appraisal.
DeWees attached her own affidavit to her memorandum of law in support of her motion for summary judgment. In the affidavit, DeWees states that she was contacted by McCue to perform an appraisal of the property, that there was no contractual relationship between her and McCue, and that there was no contractual relationship between her and the plaintiffs. *523
It is evident that the plaintiffs have alleged sufficient facts to sustain an action in negligence against DeWees. There is a genuine issue of material fact as to whether it is reasonably foreseeable that the plaintiffs, the buyers of a home purchased with a mortgage backed by HUD, and insured by the FHA, would rely on a HUD approved appraiser's determination of the existence or nonexistence of lead paint. This is particularly so if, as alleged by the plaintiffs, the appraisal was a prerequisite to the plaintiffs obtaining a mortgage backed by HUD, and if the appraiser was required to determine the existence or absence of lead paint. There is also a genuine issue of material fact regarding whether it is reasonably foreseeable that the negligent performance of the appraiser's duty would result in the general harm that the plaintiffs allege: lead poisoning and decreased property value.
The factual assertions set forth by DeWees do not prove, as a matter of law, that she owed no duty to use care to the plaintiffs. As stated earlier, privity is not required to sustain an action in negligence. See Coburn I, supra, 572. Although the relationship between the parties is a factor to consider when determining the issue of foreseeability, it is not dispositive on the issue of whether DeWees owed a duty to the plaintiffs.
The plaintiffs also allege that DeWees owed a duty to them under federal regulations.
In order for a plaintiff to prevail on a common law negligence claim for the violation of a statute a plaintiff must satisfy two conditions: "(1) the plaintiff must be a member of the class protected by the statute; and (2) the injury must be of the type the statute was intended to prevent." Small v. South Norwalk Savings Bank,
In Small v. South Norwalk Savings Bank, supra, the plaintiff sued the mortgage company that financed her home alleging that it breached a duty to advise or inform her, as required by 12 C.F.R. § 339.0 through
In the lower court, the case went to the jury on the negligence claim and the jury returned a verdict in favor of the plaintiff. Id., 755. On appeal, the defendant argued that it did not owe a duty to the plaintiff and, therefore, the judgment should be reversed. Id., 759-60. The court examined the requirements that a plaintiff must meet in order to sustain a negligence action founded upon the violation of a statute and upheld the plaintiff's award. Id., 760.
In the present case, the plaintiffs have cited
The plaintiffs allege that DeWees was selected as an appraiser because she was approved by the FHA as an appraiser. The directive language of the regulations cited above is substantially similar to the directive language cited by the plaintiff in Small v. South Norwalk Savings Bank, supra. The plaintiffs, as purchasers and occupiers of the premises, are members of the class protected by the regulations, which seek to protect the members of that class from unknowingly occupying a structure that contains lead paint. As such, it is evident that the plaintiffs' negligence allegations, affidavits and documentary evidence raise genuine issues of material fact. DeWees' motion for summary judgment as to count fourteen is therefore, denied.
DeWees asserts that she is entitled to summary judgment on count fifteen of the plaintiffs; complaint, which alleges a violation of CUTPA, because she owed no duty to the plaintiffs. DeWees concludes in her memorandum that, because she is not liable for negligence, it cannot be reasonably argued that her conduct constituted an unfair or deceptive trade practice.
As the court has denied DeWees' motion for summary judgment on the plaintiffs' negligence count, her argument regarding the plaintiffs' CUTPA claim must also fail.
Accordingly, the defendant DeWees' motion for summary judgment is denied as to counts fourteen and fifteen.