## Facts

- Homeowners Donald and Mary Kishmarton contracted with William Bailey Construction, Inc. to build a new residence for approximately $213,000 (later increased by change orders).
- The builder agreed to construct the home in a workmanlike manner, including an implied duty of workmanlike construction.
- After moving in, the homeowners experienced recurring water intrusion during winter conditions, including leaking through ceilings and walls.
- The leaks were attributed to installation issues (including roof vents allowing snow into the attic) and ice backup causing melting water to enter the home.
- The builder attempted repairs, including gutter work, but the leakage persisted for years.
- The homeowners sued alleging (1) breach of an implied duty to build in a workmanlike manner, (2) breach of an express contractual promise to build in a workmanlike manner, and (3) negligence.
- A jury awarded $24,000: $5,000 for restoration and $19,000 for loss of enjoyment, annoyance, and discomfort; the appellate court reduced restoration damages to $3,725 but upheld the $19,000 award and certified a conflict for review.

## Issues

1. Whether a claim against a builder-vendor for breach of an implied duty to construct a residence in a workmanlike manner, arising from an agreement for future construction, sounds in contract (ex contractu) or tort (ex delicto).
2. Whether homeowners may recover damages for loss of enjoyment of the residence, annoyance, and discomfort arising from the breach, regardless of whether the claim is classified as contract or tort.

## Decision

- The Supreme Court of Ohio held that the implied duty to construct a residence in a workmanlike manner, when arising from an agreement for future construction, is contractual (ex contractu).
- The court held that damages for loss of enjoyment of the residence, annoyance, and discomfort are recoverable for breach of that implied contractual duty in the residential construction context.
- The court affirmed the appellate judgment as modified, leaving intact the reduced restoration award and the $19,000 non-economic award.

## Legal Principles

- A builder-vendor’s duty to construct a newly built residence in a workmanlike manner may be implied as part of the parties’ construction contract; breach of that duty gives rise to a contract claim.
- In residential construction disputes involving breach of the implied duty of workmanlike construction, recoverable damages may include non-economic harms tied to habitability and use, such as loss of enjoyment, annoyance, and discomfort.
- The availability of loss-of-enjoyment-type damages in this setting is not barred solely because the claim is treated as contractual rather than tort-based.

## Conclusion

The Ohio Supreme Court characterized breach of the implied duty of workmanlike residential construction as a contract claim and permitted homeowners to recover damages for loss of enjoyment, annoyance, and discomfort caused by construction defects that impair the use and comfort of the home.


Kishmarton v. William Bailey Constr., Inc., 93 Ohio St. 3d 226, 754 N.E.2d 785 (Ohio 2001)