The Oregon Court of Appeals recently issued an opinion in Abraham v. T. Henry Construction, Inc., et al., a residential construction defect case, that helps clarify the circumstances under which a contractor may be sued for negligence. The issue of whether a contractor may be sued for negligence, as opposed to breach of contract is, in many cases, relevant to a determination of whether the owner’s claims are barred by the statute of limitations. Owners often need to rely upon a negligence claim to get past the six-year statute of limitations that applies to claims for breach of contract.

In Jones v. Emerald Pacific Homes, Inc., which was decided in 2003, the Oregon Court of Appeals held that an owner who had a contract with a contractor could sue the contractor in negligence if the contractor had breached a standard of care that was independent of any contractual duty or standard of care. Some courts generally referred to the non-contractual duty or standard of care as a “special relationship.” The Jones opinion then only begged the question of what constituted a special relationship.

In Abraham, the court held that, among other possibilities, a contractor’s duty to comply with the applicable building code constituted a duty independent of the contract and thereby created the type of special relationship necessary for asserting a negligence claim.

Abraham will be an important tool for owners seeking to pursue construction defect claims in situations in which the owner’s contract claim has expired due to the six-year statute of limitations, but only in certain types of cases. The Oregon Legislature recently passed legislation shortening the statute of ultimate repose (which is different from the statute of limitations) to six years, for medium to large commercial projects. As a result, the issue of whether a contractor may be sued for negligence, as opposed to breach of contract, will be relevant only to residential and small commercial projects and the Abraham case will be relevant only to those situations.