Driscoll v. Toll MA Ltd. Partnership, 26 Mass. L. Rptr. 345 (2009)

Citation: Driscoll v. Toll MA Ltd. Partnership, 26 Mass. L. Rptr. 345 (2009)
Parent Document: Driscoll v. Toll MA Ltd. Partnership, 26 Mass. L. Rptr. 345 (2009)
Jurisdiction: Massachusetts (state)
Effective Date: 2009-12-28
Original Source: https://www.courtlistener.com/opinion/8357328/driscoll-v-toll-ma-ltd-partnership/ ↗

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The defendants also seek summary judgment as to Counts IV and V, which allege breaches of the implied warranties of merchantability and fitness for a particular purpose, respectively. Although the defendants correctly point out that Massachusetts has not explicitly created an implied warranty of merchantability or good workmanship for new home buyers, the Supreme Judicial Court appears to have left open the possibility that such implied warranties might attach to new homes. See Berish v. Bornstein, 437 Mass. 252, 263-64 (2002) (citing with approval Florida district court case extending implied warranties of fitness and merchantability to sale of new condominiums); Albrecht v. Clifford, 436 Mass. 706, 709 n.7 (2002) (noting that the distinction between implied warranties of habitability and good quality and workmanship has been blurred in jurisdictions that have abandoned the doctrine of caveat emptor for the sale of new homes). This point is academic, however, as the plaintiffs concede in their opposition to the motion for summary judgment that their counts for breach of the implied warranties of merchantability and fitness for a particular purpose are, in substance, claims for breach of the implied warranty of habitability. Summary judgment shall therefore be granted as to Counts IV and V. The defendants have not moved for summary judgment as to Count III, which specifically alleges breach of the implied warranty of habitability, and the plaintiffs may proceed on that theory at trial.5 3.Negligence (Count VII)

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