Our office recently came across an interesting article describing the new “Right to Repair Act” in California, which authorizes lawsuits against design professionals for negligence in new residential developments. Apparently, prior to the passage of this law, the courts of California had applied a rule whereby only design professionals who had “control” over the construction process could be directly liable to homeowners. We were surprised to learn that such a rule had been applied in California for so many years, and therefore our natural reaction was to (1) quickly confirm our instincts as to how negligent design cases are treated in Massachusetts, and then (2) write a blog post on our findings.
Homeowners in Massachusetts may bring an action for negligent design against architects and other design professionals, even in the absence of a direct contractual relationship. This general rule is subject to two important limitations, the first being the statute of limitations for filing suit. The Massachusetts Statute of Repose (G.L. c. 260 § 2B) provides in part that any claim for property damage or personal injury arising out of a deficient or negligent design shall be commenced “no more than six years after the earlier of the dates of (1) the opening of the improvement to use; or (2) substantial completion of the improvement.”
The second limitation is referred to as the “economic loss” rule in Massachusetts. That is, in order for a homeowner to sue for negligent design, he or she must show damage beyond the defect itself and its cost to repair. For example, if a homeowner is suffering from a leaky roof due to negligent design, those leaks must lead to further property damage (for example, structural damage to the walls beneath) or personal injury (for example, a collection of puddled water on which a visitor slips and injures himself).
The Statute of Repose does not apply to contract actions. If a homeowner is seeking compensation only for the loss in property value attributable to a design defect, or the costs to repair the defect, he or she will only be able to assert a claim for breach of contract or breach of warranty against either the design professional (if there exists a direct contractual relationship between the two) or the general contractor.