There is No Non-Delegable Duty on the Part of Residential Builders in Colorado

Recently, in the Arapahoe District Court, the Honorable Michael Spear, issued an order holding that builders do not owe a non-delegable duty to homeowners.  In Marx and Corken v. Alpert Custom Homes, Inc., et al., Judge Spear’s order came in response to plaintiffs’ motion for determination of question of law seeking a finding that the defendants owed a non-delegable duty to the plaintiffs and thus, to strike defendants’ designation of nonparties at fault.  After being fully briefed, Judge Spear, found that such a non-delegable duty does not exist.
The case arises from the construction of a single-family residence in Aurora, Colorado.  Through the construction and interaction with Alpert Custom Homes, Inc. and Scott and Sally Alpert, the defendants, Paul Marx and Kay Corken, the plaintiffs claimed they suffered various damages and losses, and brought claims for breach of contract-warranty, breach of contract, violation of the Colorado Consumer Protection Act, breaches of the implied covenant of good faith, promissory estoppel, willful breach of contract, and quantum meruit.  During litigation, the defendants filed a designation of nonparties at fault, which named several parties which were at fault for the alleged construction defects at issue in the case.  The pertinent nonparties named were subcontractors of defendant Alpert Custom Homes, Inc. during the construction of the residence.
Plaintiffs filed the motion for determination of law discussed earlier seeking to strike defendants’ designation of nonparties on the basis that the defendants owed them a non-delegable duty to construct the home in a good and workmanlike manner.  Plaintiffs’ main argument stemmed from Cosmopolitan Homes v. Weller, 663 P.2d 1041, (Colo. 1983), in which the court found that a builder owes the homeowner an independent tort duty of reasonable care in constructing the residence.  Plaintiffs supported their claim by citing two district court cases which allegedly agree with the legal principle that the duty is non-delegable.
Defendants’ response argued that a non-delegable duty, such as plaintiffs claim, is a tort-based concept limited to inherently dangerous activities, which building a home is not.  Defendants also argued that a general contractor is not liable for the negligence of subcontractors, which follows a long line of cases.  Defendants’ final argument rests on Loughridge v. Goodyear Tire & Rubber Co., 207 F.Supp.2d 1187 (D.Colo. 2002), which relates to the discussion of proportionate liability and how it applies to claims for breach of warranty as well as tort claims.  Thus, defendants asked the court to issue an order (1) that the construction of a residence does not give rise to a non-delegable duty; (2) that defendants are not vicariously liable for the acts of the independent subcontractors; and, (3) that designation of nonparties is proper.
As mentioned above, Judge Spear found in favor of the defendants and held that the designation of nonparties was valid and should be allowed to stand.  In his order, Judge Spear found that while Cosmopolitan Homes stands for the idea that a builder owes an independent tort duty of reasonable care in construction of a residence, there is no Colorado Case law to support the proposition that a builder’s duty is “non-delegable.” [Emphasis added].  Judge Spear stated that such a term relates to a common law doctrine developed from Garden of the Gods Village v. Hellman, 294 P.2d 597 (Colo. 1956), to the present day, “does not support a conclusion that it should be created by the courts in the context of this case.”  Judge Spear further found that the law is clear that a person hiring an independent contractor is ordinarily not liable for negligence of the independent contract and that Cosmopolitan Homes does not stand for the proposition that a builder is vicariously liable for the torts of its subcontractors.
Judge Spear also addressed A.C. Excavating v. Yacht Club II Homeowners Ass’n, 114 P.3d 862 (Colo. 2005), which holds that a subcontractor owes a duty of care directly to the homeowner.  Discussing Yacht Club II, and supporting his finding that a non-delegable duty does not exist, Judge Spear stated that if a builder were to have a non-delegable duty, there would be no need for the holding of Yacht Club II.
When Judge Spear discussed defendants’ argument regarding proportionate liability, he walked through many different cases.  However, Judge Spear found the Loughridge Court’s reasoning persuasive.  Judge Spear found that the statute’s “language contains no limitation to tortious acts and when, as in this case, a plaintiff in reality plead alleged contract and warranty claims as tort claims based on a duty implied by law § 13-21-111.5, C.R.S., applies and the Designation of Non-Parties is proper.”
Thus, the court in Marx and Corken v. Alpert Homes, Inc., et al., found that a builder’s duty of reasonable care in construction of a residence owed to a homeowner is just that.  It does not rise to the level of non-delegable duty and does not interfere with a builder’s ability to apportion blame to its independent subcontractors who may be liable.

For additional information regarding Colorado construction litigation, please contact David M. McLain at (303) 987-9813 or by e-mail at


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