Can Homeowners Recover for Their Emotional Distress?

Kegler Brown Construction Newsletter

While homeowners frequently complain about the emotional trauma created by a negative building experience, they typically have not been able to recover emotional distress type damages on their contract claims arising from poor workmanship.

However, a recent Ohio case has opened the door to the recovery of such non-economic damages. The Court of Appeals for Cuyahoga County permitted a jury award of $19,000 for "loss of enjoyment" of the home due to the annoyance caused by severe roof leaking and other problems caused by unworkmanlike construction. Kishmartin v. William Bailey Const. Inc. This case appears headed for Ohio's Supreme Court.

In contrast, a California judge, obviously well versed in the realities of a residential building project, denied such claims and had this to say about the process:

"The Erlichs may have hoped to build their dream home and live happily ever after, but there is a reason that tag line belongs only in fairy tales. Building a house may turn out to be a stress-free project; it is much more likely to be the stuff of urban legends - the cause of bankruptcy, marital dissolution, hypertension and fleeting fantasies ranging from homicide to suicide. As Justice Yegan noted below, 'No reasonable homeowner can embark on a building project with certainty that the project will be completed to perfection. Indeed, errors are so likely to occur that few if any homeowners would be justified in resting their peace of mind on [its] timely or correct completion....'"

Erlich v. Menzes, 21 Cal. 4th 543 (1999).