Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Farnworth v. Rossetto

Court of Appeals of Oregon

April 26, 2017

Brendan FARNWORTH and Jane Farnworth, individuals, Plaintiffs-Appellants,
v.
Keith F. ROSSETTO, dba Keith Rossetto Construction, Defendant, and CITY OF MEDFORD, an Oregon municipal corporation, Defendant-Respondent.

          Argued and Submitted November 10, 2015

         Jackson County Circuit Court 14CV04436; Timothy C. Gerking, Judge.

          Michael W. Franell argued the cause and filed the briefs for appellants.

          Eric B. Mitton argued the cause for respondent. With him on the brief was Hornecker Cowling LLP.

          Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge. [*]

          Case Summary: Plaintiff homeowners appeal from the trial court's granting of the City of Medford's motion for summary judgment on plaintiffs' common-law negligence claim asserting that the city was negligent in issuing a certificate of occupancy for their home despite an obvious violation of the building code based on the absence of a weather barrier. Although the building code does not require inspection for the presence of a weather barrier or for violations in general, plaintiffs asserted that the city, having undertaken the enforcement of the building code, had a duty to exercise reasonable care to perform the function so as to avoid creating a foreseeable risk of harm to plaintiffs.

          Held: The city did not have an affirmative duty, the violation of which was actionable in negligence, to undertake inspections not required by the building code or to take action in response to violations of requirements not subject to inspection. The trial court therefore did not err in granting the city's motion for summary judgment.

          SERCOMBE, P. J.

         Plaintiff homeowners brought this common-law negligence action against the City of Medford under the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300, [1] contending that the city was negligent in issuing a certificate of occupancy for their home despite an obvious violation of a building code requirement for the installation of a weather barrier. Plaintiffs alleged that the absence of the barrier was apparent at the time of the inspection of the home in July 2004 and should have been noticed by the inspector. Plaintiffs alleged that, by virtue of the city's obligation to enforce the building code, the city should have taken action in response to the absence of a weather barrier and was negligent in failing to do so. On the city's motion for summary judgment, the trial court dismissed the claim, concluding that the building code does not provide a private right of action against the city. We affirm the trial court, but based on a slightly different rationale.

         In reviewing the trial court's granting of the city's motion for summary judgment, we view the evidence and all reasonable inferences in the light most favorable to plaintiffs, as the nonmoving party, for the purpose of determining whether there is no genuine issue of material fact and the city is entitled to judgment as a matter of law. ORCP 47 C. The facts in the record on summary judgment are undisputed for purposes of the issues presented on appeal. In 2004, plaintiffs hired a builder to construct a home in Medford, Oregon. The record on summary judgment includes a record of inspections made by the city during the construction of plaintiffs' house and a photograph of the property taken on the day after the inspection of July 14, 2004. The photograph shows that, at that time, the windows had been framed but that no sheathing paper had been installed. The city made its final inspection of the house on September 21, 2004.

          At the relevant time, with some exceptions, the applicable building code required installation of a "weather-resistant sheathing paper, "[2] a weather barrier to protect the house from outside moisture. The building code required inspections of the foundation, frame, and masonry, and the plumbing, mechanical, gas, and electrical systems. Oregon Residential Specialty Code (ORSC) section R109. It permitted "other inspections to ascertain compliance" with the building code, ORSC section R109.1.5, but did not require an inspection for the presence of weather-resistant sheathing paper or a weather barrier. Nor did the building code require a general inspection for compliance with or violations of the building code.

         Plaintiffs' complaint alleged that plaintiffs discovered water damage to their home in 2014, and learned that the damage was caused by the absence of a weather barrier. Plaintiffs' complaint alleged that the city is "charged with the duty of routine enforcement" of the building code. It alleged that, by virtue of its responsibility to enforce the building code and to approve occupancy, the city had a special relationship with plaintiffs that gave rise to a duty to "insure the protection of plaintiffs' interests."[3] Plaintiffs also alleged that, at the time of the July 14 inspection, the city's inspector should have noticed that no sheathing paper had been or would be installed, and knew or should have known that the failure to install sheathing paper would cause a risk of water incursion and mold damage to the home. Thus, the complaint alleged, the city acted unreasonably in failing to enforce the building code by "failing to ensure [that the builder] installed" a weather barrier and by "finaling" the permit.[4]

         In its motion for summary judgment, the city contended that, assuming that the building code required the installation of sheathing paper and that the builder had failed to install it, [5] the city had no affirmative duty under the building code to inspect for the builder's compliance with the code provisions generally, and no obligation to inspect for sheathing paper or any other type of weather barrier and, therefore, the presence or absence of the weather barrier is not an interest of the kind that the law protects and the city did not act unreasonably in not making such an inspection.[6] In their response to the motion for summary judgment, plaintiffs did not dispute that the building code itself did not require an inspection for a weather barrier. But they contended that the city's negligence arose not from a failure to inspect, but from the breach of a standard of care implicit in the city's obligation under the statutes and the building code to enforce the builder's obligations under the building code generally. Plaintiffs noted that the purpose of the building code, as expressed in ORS 455.020, is to "establish uniform performance standards providing reasonable safeguards for health, safety, welfare, comfort and security of the residents of this state who are occupants and users of buildings." They noted, further, that, under ORS 455.148(3), a municipality assuming responsibility for the administration and enforcement of a building inspection program "shall *** appoint *** a building official, " who shall, in turn, "attend to all aspects of code enforcement."[7] Plaintiffs contended that the city, having assumed responsibility for code enforcement, had an obligation to enforce the building code, and that its issuance of a certificate of occupancy despite known violations of the building code was unreasonable and actionable in negligence, to the extent that it caused plaintiffs' damages. Therefore, plaintiffs asserted, the city's motion for summary judgment should be denied.

         In granting the city's motion for summary judgment, the trial court reasoned that plaintiffs could have brought a negligence claim against the builder. See Abraham v. T. Henry Construction. Inc., 350 Or 29, 249 P.3d 534 (2011). But, relying on the Supreme Court's opinion in Doyle v. City of Medford, 356 Or 336, 337 P.3d 797 (2014), the court concluded that the building code regulatory scheme "does not establish a private right of action ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.