In a nutshell, the “economic loss rule” is a rule that courts use to prevent a plaintiff from against a defendant for a tort (usually negligence) when the essence of the claim is for failure to live up to the terms of a contract. This doctrine does, however, have exceptions, and it becomes tricky when applied to service contracts such as construction contracts. Nevertheless, there are circumstances when the economic loss rule might eliminate a contractor or subcontractor’s liability entirely.
First, some explanation is in order: what constitutes “economic loss”? Economic loss includes damage to the value of a product (such as costs to replace or repair the product), lost profits and business opportunities, loss of use of the product, and a product’s failure to perform as expected. One court has said that “the essence of economic loss is that it is occasioned by the failure of the product to perform at the level of performance expected by the buyer, resulting in a loss of the bargain.” Personal injury is not considered economic loss, so this rule does not apply to lawsuits where people have been hurt by a contractor’s alleged error. Also, damage to “other property” is not considered economic loss, but the definition of “other property” is narrow and does not, for example, include the premises in which a product was installed. In the context of construction contracts, the real estate that is improved will therefore generally not be “other property”, and the economic loss rule would bar recovery for negligence claims for damage to that property.
The economic loss rule is typically applied in the context of product liability claims involving the manufacture and sale of goods, but it also comes up in the context of service contracts such as construction contracts. New York law, however, recognizes exceptions to its application to service contracts. The courts of New York have consistently said that professionals—such as architects and engineers—have a separate legal duty imposed by the law and may be sued for malpractice for a failure to exercise reasonable care in performing their contract duties. This duty is considered separate from the duties which the professional assumed under the contract and supports a negligence-based cause of action even where the plaintiff’s injury is considered economic loss.
With respect to non-professionals, such as contractors and subcontractors, there is no hard-and-fast rule. A close inspection of the facts of an individual case is required to determine whether the economic loss rule might bar negligence and other tort claims. As a rule, however, the breach of a duty imposed by a contract only gives rise to a suit for breach of contract. Courts hearing lawsuits by plaintiffs alleging negligence and related claims against defendants look into whether the law imposes a separate duty, the type of damage which the plaintiff has suffered, and the manner in which the injury occurred. Courts have allowed negligence claims to stand alongside or replace breach of contract claims where there was personal injury or damage to property, and where the damage occurred by accident in an “abrupt, cataclysmic occurrence”. The failure of a contractor to act in accordance with regulations governing his or her conduct might also give rise to a separate duty which would support an action for negligence. Ultimately, only an attorney can review the facts of your specific case and advise you whether the economic loss rule might apply, but situations in which a negligence cause of action exists between the parties to a contract remain the exception rather than the rule.
At this point you may be wondering how this matters to you. After all, if a homeowner can’t sue you for negligence, he can still sue you for breach of contract, can’t he? Actually, where the plaintiff is not a party to your contract, the economic loss rule might defeat his case. A plaintiff in a breach of contract action has to establish either that he was a party to the contract or that the contract was intended to benefit him. This rule applies both to breach of contract suits against contractors or subcontractors and breach of contract or malpractice suits against architects. This defense might benefit a subcontractor or an architect who is hired by a general contractor and therefore did not directly have a contractual obligation to the homeowner, barring a lawsuit entirely.
In sum, New York contractors and subcontractors should be aware of the economic loss rule in the event that they find themselves defending against lawsuits by property owners, as, in general, a negligence action against a contractor or subcontractor only exists if a personal injury occurred as a result of the contractor’s alleged failure(s). The rule is less applicable to architects, although the traditional defense that a plaintiff was not a party to the contract with the architect still exists in some instances. Only an attorney can advise you in any given instance whether the economic loss rule applies to the facts of your circumstances and, if it does, what benefit it might confer.
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The author, John Caravella Esq
., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C.
, representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608–1356 or (516) 462-7051.
This is a general information article and should not be construed as legal advice or a legal opinion. Readers are encouraged to seek counsel from a construction lawyer for advice.
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