Andrews v. Picard (Colo. App. 2007)
The Colorado Court of Appeals reaffirmed that homebuilders owe an independent duty of care in tort to purchasers, and reversed the trial court's directed verdict dismissing the plaintiff's negligence claim. Although this holding does not change the law, the case is interesting in that the plaintiff received a judgment against the defendants on her breach of contract claim, and the Court still remanded the case to allow the plaintiff to pursue her tort claim. This demonstrates some of the differences between tort and contract recovery.
The Court detailed some of the additional evidence that a plaintiff/homeowner can introduce in a tort claim as opposed to a breach-of-contract claim, and some of the additional damages that a plaintiff/homeowner is entitled to on a tort theory as opposed to a breach-of-contract theory:
- Plaintiff may present different or additional evidence of economic damages on retrial. Depending on the evidence presented,
- plaintiff’s negligence claim may redress a broader measure of economic loss than was included in her claim for breach of contract.
- . . . plaintiff’s negligence claim would permit additional recovery for “annoyance, inconvenience, and frustration,” as well as exemplary damages. These damages were not included in the jury’s award for breach of contract.
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