William M. Turner and Kathryn S. Turner v. Westhampton Court, L.L.C.

Summary

The Supreme Court of Alabama held that the trial court erred in granting summary judgment on the Turners' general negligence and wantonness claim because the asserted limitations defense was not properly established in the summary-judgment record. The court affirmed summary judgment on the claims involving EIFS application, negligent hiring, failure to warn, express warranty, implied warranty of habitability, and breach of contract. The case was affirmed in part, reversed in part, and remanded.

Holdings

1. The trial court erred in granting summary judgment on the general negligence and wantonness claim because Westhampton did not challenge in its summary-judgment motion the Turners' alleged failure to establish that Westhampton was a statutory builder eligible for the latent-defect discovery rule.
2. The court will not consider a legal theory presented for the first time on appeal from a summary judgment.
3. Application of EIFS to a house is not an abnormally dangerous activity under the factors derived from Restatement (Second) of Torts § 520; therefore, summary judgment was proper on the negligent-hiring claim to the extent it depended on that theory.
4. Summary judgment was proper on the failure-to-warn claim because EIFS is not a product for purposes of a common-law negligence failure-to-warn claim.
5. A house seller may contractually limit warranty coverage by requiring notice of a defect within a specified period, and the Turners' failure to provide evidence of notice within the one-year warranty period barred their express warranty claim.
6. The implied warranty of habitability in the sale of a new house may be effectively disclaimed when the purchaser receives a reasonable express warranty of some duration in lieu of the implied warranty.
7. The Turners' breach-of-contract claim was more accurately characterized as a breach of the implied warranty of workmanship, and summary judgment was proper because the express warranty expressly disclaimed that claim.

Questions Presented

1. Whether summary judgment was proper on the general negligence and wantonness claim where Westhampton had not challenged the Turners' proof that Westhampton was a statutory builder under Alabama's construction-defect discovery statutes.
2. Whether Westhampton could be liable for the independent contractor's EIFS installation under an abnormally dangerous activity or nondelegable-duty theory.
3. Whether the Turners' negligent hiring, training, supervision, and retention claim survived summary judgment.
4. Whether the Turners' failure-to-warn claim survived summary judgment.
5. Whether the limited warranty's one-year notice provision barred the express warranty claim.
6. Whether the warranty effectively disclaimed the implied warranty of habitability.
7. Whether the breach-of-contract claim was in substance a breach of the implied warranty of workmanship claim and was barred by the warranty disclaimer.

Disposition

reversed_and_remanded