Kishmarton v. William Bailey Construction, Inc.

754 N.E.2d 785 (2001)

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Rule Of Law

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Nature Of The Case

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Facts

Ps entered into a contract with D for the construction of a residential home. D agreed to build the house in a 'workmanlike manner.' Ps moved into the house, and the following winter, they became concerned about water leaking through the ceiling and down the walls. One source of the leaks was the roof vents, which allowed snow to enter the attic during storms. Another source of the water leaks was ice backup, a condition that occurs when water freezes on the roof area and, upon melting, leaks into a house. D replaced a portion of the gutter near the garage, but all attempts to remedy the problem failed. The leaks continued unabated for several years. Ps sued D alleging a breach of implied warranty and duty to provide workmanlike construction service by building the home in a negligent manner, breach of the terms of the express warranty in the construction contract to perform the work in a workmanlike manner, and negligence in building and constructing the home. The jury awarded $24,000 damages, consisting of $5,000 for the reasonable restoration of the property and $19,000 for loss of enjoyment of the residence, annoyance, and discomfort. The court of appeals upheld the $19,000 award for loss of enjoyment. However, it found the award of $5,000 for restoration to be against the manifest weight of the evidence and reduced that portion of the award to $3,725. D appealed.

Issues

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Holding & Decision

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Legal Analysis

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