Saltiel v. GSI Consultants, Inc.

The opinion of the Court was delivered by

In this appeal we consider whether corporate officers can be held personally liable for allegedly tortious conduct under the participation theory of liability. The conduct at issue arose after the corporate defendant entered into a contract with plaintiff pursuant to which it was to design and prepare specifications for the turfgrass to be used on two athletic fields at a New Jersey university. Plaintiff alleged that the corporation and its officers negligently prepared the turfgrass specifications resulting in substantial financial loss to plaintiff. Accordingly, plaintiff sought to recover in tort against the officers personally based on the participation theory of liability.

The trial court granted summary judgment for both individual defendants, concluding that their status as corporate officers insulated them from personal liability. In an unpublished opinion the Appellate Division reversed, holding that the officers’ complicity in the preparation of the allegedly defective specifications could provide a basis for personal tort liability under the participation theory. We granted the officers’ petitions for certification, 167 *300 N.J. 89, 769 A.2d 1051 (2001), and now reverse the judgment below.

I

In December 1997, plaintiff Jan Saltiel, doing business as Edge-water Design Associates, filed suit against GSI Consultants, Inc. (GSI), a Pennsylvania corporation, Dr. Henry Indyk, a GSI corporate officer, and Richard Caton, a former GSI corporate officer. The complaint sought damages arising from allegedly defective turfgrass specifications prepared by defendants and used by plaintiff in the reconstruction of a softball field and soccer field located at William Paterson University (WPU) in Wayne, New Jersey. Plaintiff is a landscape architect and GSI is a turfgrass consulting company doing business under the name Turfcon. Plaintiff has since voluntarily dismissed her claims against GSI.

The underlying transaction involved WPU’s award to plaintiff in March 1995 of a contract to provide landscaping architectural services for the reconstruction of its athletic fields. Plaintiff in turn requested a proposal from GSI outlining turfgrass specifications for the reconstruction. In February 1995, GSI submitted a proposal, signed by Caton, listing the services that it would perform in connection with the WPU contract. The letter was on the letterhead of Turfcon, and the letterhead stated: “GSI Consultants, Inc./Turfcon Division.” Plaintiff accepted the proposal and engaged GSI to prepare the specifications for the WPU athletic fields. GSI performed the following services: preparation of specifications for the design of a new drainage system; design, preparation of specifications, and testing of a rootzone mixture; preparation of specifications and selection of a new sod; and monitoring of the actual reconstruction, which was to be completed by a contractor selected by WPU after a public bid, ultimately Flanagan’s Inc.

The softball field was constructed first. Indyk, in his capacity as a corporate officer of GSI, made several site visits to monitor the construction of the field and correct any deviations from the *301 turfgrass specifications. The record indicates that WPU has expressed no dissatisfaction with the work done on the softball field.

The soccer field was completed in September 1996. Indyk did not visit the soccer field on a regular basis as had been his practice with respect to the softball field. Almost immediately after its completion, the soccer field developed problems of standing water and inadequate drainage. In response to the problems, WPU installed additional drainage facilities and began core aerification of the soccer field’s turf. However, the drainage did not improve and the turfgrass was consistently damp or soggy. The soccer field remained unfit for athletic use.

Plaintiff hired Turf Diagnostics and Design, Inc. (TDD) to determine the cause of the drainage failure. After an investigation, TDD informed plaintiff that, although the soccer field had been constructed in accordance with GSI’s field specifications, the field specifications had been negligently prepared because the rootzone designed by GSI formed a nearly impermeable barrier that did not allow for proper water drainage. As required under plaintiffs contract with WPU, she prepared new specifications for the field and hired a contractor to reconstruct it at a cost of $351,000. Plaintiffs contract with GSI did not require GSI to provide a bond or demonstrate evidence of professional liability insurance.

Plaintiffs complaint alleges claims against all defendants for negligent design, negligent misrepresentation, breach of contract, breach of warranty, promissory estoppel, and agency liability. The parties conducted discovery that focused primarily on whether defendants Indyk and Catón could be held personally liable. In January 1999, Indyk moved for summary judgment on the ground that he could not be personally liable for acts he performed as an officer on behalf of GSI. The trial court granted summary judgment, reasoning:

It [ ] appears the very purpose for incorporation — one of the purposes is — is to hopefully escape from individual liability or responsibility. And certainly, when *302 you look at the Turfcon letterhead, when they wrote to Jan Saltiel of Edgewater Design Associates, although Turfcon appears on the top of that letterhead, the GSI Consultants, Incorporated clearly appears on the bottom with two phone numbers, and the address of the entity.

So I don’t share the same impression of this case as the plaintiff shares. I — I think the defense is absolutely correct in their motion for summary judgment to dismiss Dr. Henry Indyk from this case. New Jersey law should apply. The fields are about 10 miles from this courthouse, at the William Paterson College, the now William Paterson University in Wayne. The fact that the shares were not signed pursuant to Pennsylvania law, to me, is not of any great consequence, because they were delivered. They’re in the names of the — Dr.—Dr. [Caton], Dr. Indyk, and their wives. They’re in the stock agreement that was entered into as — as well. And there’s no question that Dr. Indyk was acting through his corporation when he agreed to undertake the responsibilities of overseeing the two fields that were being built in William Paterson, or being renovated in William Paterson. So I’m going to grant defendant’s application for summary judgment on behalf of the individual[.]

Thereafter, Caton also moved for and was granted summary judgment, essentially on the basis of the same analysis that supported summary judgment for Indyk. In an unreported opinion the Appellate Division reversed both summary judgment rulings. That court concluded that both Indyk and Catón could be personally liable for negligence under the so-called “participation theory of personal liability.”

II

The sole issue on appeal is whether the trial court properly granted summary judgment in favor of defendants Caton and Indyk. Its resolution requires us to consider: (1) the proper application of the participation theory of personal liability for tortious conduct by corporate officers under New Jersey law; and (2) whether the plaintiffs claim against Indyk and Caton sounds in tort or contract.

We note at the outset that summary judgment may be granted if, according the plaintiff the benefit of all positive inferences from the facts as presented, a trial court determines that plaintiff has failed to assert a genuine issue of material fact. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523, 666 A.2d 146 (1995). We recently observed that the “determination whether there *303 exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented ... are sufficient to permit a rational factfinder to resolve the alleged dispute in favor of the non-moving party.” James v. Bessemer Processing Co., Inc., 155 N.J. 279, 305, 714 A.2d 898 (1998).

A

The Appellate Division’s opinion correctly determined that our caselaw has recognized the applicability of the participation theory of personal liability for the tortious conduct of corporate officers. Fletcher’s Cyclopedia of the Law of Private Corporations defines the participation theory as follows:

An officer of a corporation who takes part in the commission of a tort by the corporation is personally liable for resulting injuries; but an officer who takes no part in the commission of the tort is not personally liable to third persons for the torts of other agents, officers or employees of the corporation. Officers and directors may be held individually liable for personal participation in tortious acts even though they derived no personal benefit, but acted on behalf, and in the name of, the corporation, and the corporation alone was enriched by the acts.

An officer may be personally liable for a tort to a third person where the corporation owed a duty of care to that person, the duty had been delegated to the officer, and the officer breached this duty through personal fault causing injury. If the defendant’s duty had been delegated with due care to some responsible subordinate, the defendant was not at fault and will not be held liable and the defendant knew or should have known of its nonperformance or malperformance and did not cure the risk of harm.

[3A William M. Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 1137 (rev.perm. ed.1994)(footnotes omitted).]

Thus, the essence of the participation theory is that a corporate officer can be held personally liable for a tort committed by the corporation when he or she is sufficiently involved in the commission of the tort. A predicate to liability is a finding that the corporation owed a duty of care to the victim, the duty was delegated to the officer and the officer breached the duty of care by his own conduct.

*304 New Jersey cases that have applied the participation theory to hold corporate officers personally responsible for their tortious conduct generally have involved intentional torts. More specifically, the majority of the cases have involved fraud and conversion. See, e.g., Charles Bloom & Co. v. Echo Jewelers, 279 N.J.Super. 372, 382, 652 A.2d 1238 (App.Div.1995)(holding that defendants could be personally liable for alleged conversion even if they were acting in corporate capacity); Van Dam Egg Co. v. Allendale Farms, 199 N.J.Super. 452, 457, 489 A.2d 1209 (App.Div.1985)(declining to dismiss fraud complaint against corporate officer even though it did not allege that he personally benefitted from allegedly wrongful acts); Robsac Indus., Inc. v. Chartpak, 204 N.J.Super. 149, 156, 497 A.2d 1267 (App.Div.1985)(reversing summary judgment for defendant corporate officer charged with malicious interference with contract, fraudulent misrepresentation, and defamation notwithstanding that liability also was imposed on corporation); McGlynn v. Schultz, 95 N.J.Super. 412, 417, 231 A.2d 386 (App.Div.1967)(finding corporate officers personally liable for knowingly acquiescing in and ratifying alleged conversion).

Over fifty years ago this Court in Hirsch v. Phily, 4 N.J. 408, 416, 73 A.2d 173 (1950), articulated the basis for holding corporate officers personally liable in such cases:

It is well settled by the great weight of authority in this country that the officers of a corporation are personally liable to one whose money or property has been misappropriated or converted by them to the uses of the corporation, although they derived no personal benefit therefrom and acted merely as agents of the corporation. The underlying reason for this rule is that an officer should not be permitted to escape the consequences of his individual wrongdoing by saying that he acted on behalf of a corporation in which he was interested.

[Citations omitted.]

Other jurisdictions also adhere to that principle. In Central Benefits Mutual Insurance Co. v. RIS Administrators Agency, Inc., 93 Ohio App.3d 397, 638 N.E.2d 1049, 1053 (1994), the court applied the participation theory in holding that the defendant corporate officer could be personally liable for a conversion that occurred during his tenure as president of an insurance company. *305 See also Bernhardt v. Needleman, 705 A.2d 875, 878 (Pa.Super.Ct.1997)(holding attorney and his corporation liable for breach of contract and conversion in claim for recovery of referral fee); Shonberger v. Oswell, 365 Pa.Super. 481, 530 A.2d 112, 114-15 (1987)(holding that consignment agreements formed basis for conversion action under participation theory); Johnson v. Harrigan-Peach Land Dev. Co., Inc., 79 Wash. 2d 745, 489 P.2d 923, 928 (1971)(holding corporate officers personally liable for conversion of plaintiffs property under participation theory).

A number of jurisdictions, including New Jersey, also apply the participation theory to hold corporate officers personally liable for certain statutory violations. For instance, in Kugler v. Koscot Interplanetary, Inc., 120 N.J. Super. 216, 257, 293 A.2d 682 (1972), the defendant corporate director of a cosmetics corporation was held personally liable for unlawful practices under the Consumer Fraud Act. A Texas court of appeals recently concluded that a corporate officer of a construction company could be held personally liable for violation of that state’s Deceptive Trade Practices Act. Keyser v. Miller, 47 S.W.3d 728, 733 (Tex.App.2001). See also Plowman v. Bagnal, 316 S.C. 283, 450 S.E.2d 36, 37-38 (1994)(acknowledging “controlling persons” of corporation are potentially personally liable for violations of Unfair Trade Practices Act). In contrast, the Virginia Supreme Court held that the corporate director and majority shareholder of a check cashing company could not be personally liable for actively participating in illegal acts that violated Virginia’s Consumer Finance Act. Greenberg v. Commonwealth, 255 Va. 594, 499 S.A.2d 266, 270 (1998).

The conduct at issue in this appeal does not implicate intentional tortious conduct, but rather the individual defendants’ allegedly negligent conduct in designing the specifications for the soccer field. Indyk and Caton assert that the participation theory is limited to intentional torts by corporate officers. The Appellate Division, although recognizing the lack of precedent in New Jersey and other jurisdictions applying the participation theory to negligent conduct, was unwilling to limit the doctrine to intention *306 ally tortious acts. That court relied on three New Jersey decisions to support its broader application of the participation theory.

In Tompkins v. Burlington Island Amusement Co., 102 N.J.L. 411, 132 A. 670 (1926), the Court of Errors and Appeals affirmed a judgment against the general manager of an amusement park located on an island in the Delaware River. The general manager’s liability stemmed from his allegedly supervisory responsibility for the defective construction of a “slip” connecting the pier leading to the park to a float that provided access to small boats. Plaintiff sustained injuries when the slip collapsed. The Court relied on the general manager’s alleged responsibility for construction of the defective slip as the basis for his potential personal liability.

In Sensale v. Applikon Dyeing & Printing Corp., 12 N.J.Super. 171, 79 A.2d 316 (1951), the Appellate Division recognized the potential for liability under the participation theory for negligent conduct, but held that the facts presented did not personally implicate the president of the defendant corporation in the events leading to an employee’s death. The decedent was electrocuted while moving a machine for his employer. The court found that there was insufficient evidence to establish the president’s requisite participation in the events resulting in the plaintiffs death. Id. at 175, 79 A.2d 316.

In Evans v. Rohrbach, 35 N.J.Super. 260, 113 A.2d 838 (App. Div.), cert denied, 19 N.J. 362, 117 A.2d 203 (1955), the plaintiff employee sustained serious injuries from an explosion and fire inside the metal tank where he had been working. Although the court acknowledged that the worker’s compensation statute in force at that time did not necessarily preclude an employee’s cause of action against a fellow employee, the court declined to hold several corporate officers of the employer corporation named in the complaint personally liable for the alleged negligence resulting in the plaintiffs injuries. However, the court acknowledged the potential for such liability:

*307 The problem confronting us here is whether the relationship of the defendants, or of any of them, to the specific industrial operation which gave rise to plaintiffs injuries was sufficiently direct or close so that it may be fairly said that they did participate or co-operate therein to an extent which should preclude their exculpation from liability to the plaintiff [based on negligence] as a matter of law.

[Id. at 264, 113 A.2d 838.]

The decisions in Tompkins, Sensale and Evans arguably support plaintiffs contention that the participation theory is not limited to intentional torts, and that the theory’s application turns only on the question of whether there was actual participation in allegedly tortious conduct rather than on the nature of the tortious conduct. Although the theory may encompass conduct other than intentional torts, that issue has not been settled. Based on the application of the participation theory in other state courts, it may be argued that the theory should be limited to cases involving intentional wrongful conduct by corporate officers, or negligent conduct by such officers that results in personal injuries such as those involved in Tompkins, Sensale, and Evans.

Application of the participation theory to negligent conduct by corporate officers in other jurisdictions also has involved personal injury claims. In Skelton v. Chemical Leaman Tank Lines, Inc., 1996 WL 278343 (Conn.Super.), the plaintiffs filed a negligence claim against the defendant chemical corporation and two of its employees for injuries sustained by their minor child as a result of the plaintiffs contact with toxic material emanating from defendant’s property after a chemical explosion. Characterizing the participation theory as a “widely accepted” legal principle, the court denied summary judgment for the employee defendants on the basis that their behavior may have risen to the requisite “‘level of involvement in day to day business operations and participation in decisions regarding disposal of hazardous waste.’ ” Id. at *7 (quoting Armotek Industries, Inc. v. Freedman, 790 F.Supp. 383, 394 (D.Conn.1992)).

In a very recent Maryland case, Shipley v. Perlberg, 140 Md.App. 257, 780 A.2d 396, 2001 WL 1013369 (2001), the plaintiff filed a negligence claim for personal injuries resulting from lead *308 paint exposure. Defendant was an officer of a real estate corporation that was the lessor of the property on which the lead paint was found. The Maryland Court of Special Appeals acknowledged the general applicability of the participation theory, but held that the corporate officer was not sufficiently involved with the rental properties in question to justify the imposition of liability.

As noted by the Appellate Division, the Pennsylvania Supreme Court has applied the participation theory to negligence claims. In Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983), homeowners brought claims against three officers of the corporation that built the residential development in which the homeowners resided based on breach of implied and express warranties, negligence and misrepresentation. The court reversed the dismissal of the negligence and misrepresentation claims. Plaintiffs alleged that the defendants should have been aware that the location of their home created an unreasonable risk of the occurrence of drainage problems on their property. They further alleged that the resulting contamination on the property from chemical run-off, bacteria and slime made their homes uninhabitable and caused serious health problems for their families. In finding the officers potentially liable, the court made no distinction between intentional and negligent tortious conduct. The court recognized that “[u]nder the participation theory, the court imposes liability on the individual as an actor ... [and not] as an owner” when the evidence presented indicates he participated in the tortious conduct. Id. at 90.

In a case somewhat analogous to the facts in this record, the Maryland Court of Special Appeals affirmed a judgment against the president of a construction company for his participation in negligent conduct that resulted in severe cracks and holes in a brick wall attached to the plaintiffs house. St. James Construction Co. v. Morlock, 89 Md.App. 217, 597 A.2d 1042 (1991). The court found that because the corporate officer actually chose the materials used by the company in constructing the brick wall, he could be held personally liable under the negligent design and *309 construction claim. Id. at 1046. See also Scribner v. O’Brien, Inc., 169 Conn. 389, 363 A.2d 160, 167 (1975) (affirming judgment against corporate officers of corporate contractor based in part on negligence because of defendants’ daily presence at construction site, supervision of ongoing work and design participation).

B

Whatever may be the appropriate standard for limiting corporate officers’ liability under the participation theory, the essential predicate for application of the theory is the commission by the corporation of tortious conduct, participation in that tortious conduct by the corporate officer and resultant injury to the plaintiff. If, however, the breach of the corporation’s duty to the plaintiff is determined to be governed by contract rather than tort principles, the participation theory of tort liability is inapplicable. Accordingly, because the plaintiffs relationship with GSI initially was defined by the contract between them, we consider the principles that reliably serve to distinguish contract and tort claims.

As explained by the Appellate Division in Wasserstein v. Kovatch, 261 N.J.Super. 277, 286, 618 A.2d 886 (1993), “[n]otwithstanding the language of the [plaintiffs] complaint sounding in tort, the complaint essentially arises in contract rather than tort and is governed by the contract.” See also Walker Rogge, Inc. v. Chelsea Title & Guar. Co., 116 N.J. 517, 540, 562 A.2d 208 (1989)(holding that negligent performance allegations were merely a form of breach of contract action). Those distinctions between tort and contract actions are critical because “[attaching a tort claim to a breach of contract action dramatically alters the rules governing damages.” Michael Dorff, “Attaching Tort Claims to Contract Actions: An Economic Analysis of Contract,” 28 Seton Hall L.Rev. 390, 406 (1997).

At common law a plaintiff who had a contractual relationship with the defendant was able to sue in tort if the plaintiff could establish that the alleged breach of duty constituted a “separate and independent tort.” Id. at 407. However, “the boundary line *310 between tort and contract actions is not capable of clear demarcation.” New Mea Construction Corp. v. Harper, 203 N.J.Super. 486, 493, 497 A.2d 534 (1985). Similarly, Prosser & Keeton on the Law of Torts states that “[t]he distinction between tort and contract liability, as between parties to a contract, has become an increasingly difficult distinction to make.” W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 92, at 655 (5th ed. 1984) (Prosser & Keeton).

Prosser & Keeton offers seven guidelines to assist in distinguishing between tort and contract claims:

(1) Obligations imposed by law are tort obligations;

(2) Tort obligations may not be disclaimable;

(3) Misfeasance or negligent affirmative conduct in the performance of a promise generally subjects an actor to tort liability as well as contract liability for physical harm to persons and tangible things;

(4) Recovery of intangible economic loss is generally determined by contract;

(5) There is no tort liability for nonfeasance, i.e., for failing to do what one has promised to do in the absence of a duty to act apart from the promise made;

(6) Duties of affirmative action are often imposed by law apart from the promises made;

(7) Damages for a loss suffered by a promisee in reliance on a promisor to carry out a promise may be recoverable on a tort negligence theory.

[Prosser & Keeton, supra, § 92, at 656-58.]

Clearly relevant to the facts of this case is the fourth guideline. Prosser & Keeton states that “[generally speaking, there is no general duty to exercise reasonable care to avoid intangible economic loss or losses to others that do not arise from tangible physical harm to persons and tangible things.” Id. at 657. In fact, most jurisdictions hold that a contractor’s liability for economic loss is limited to the terms of the contract.

In Redarowicz v. Ohlendorf 92 Ill.2d 171, 65 Ill.Dec. 411, 441 N.E.2d 324 (1982), the Illinois Supreme Court held that a homeowner’s economic losses were not recoverable through a negligence claim. The homeowner was seeking damages for replacement and repair costs resulting from a defective chimney. The court stated that “[t]o recover in negligence there must be a showing of harm above and beyond disappointed expectations. A *311 buyer’s desire to enjoy the benefit of his bargain is not an interest that tort law traditionally protects.” Id. at 327. See also 17 Vista Fee Assoc. v. Teachers Insur. and Annuity Ass’n of America, 259 A.D.2d 75, 693 At N.Y.S.2d 554, 559 (N.Y.App.Div.1999)(noting that party attempting to recover economic loss under contract cannot sue in tort “notwithstanding the use of familiar tort language in its pleadings”); Comptech Int'l, Inc. v. Milam Commerce Park, Ltd., 711 So.2d 1255, 1259 (Fla.Dist.Ct.App.1998)(reaffirming Florida’s Economic Loss Rule that “prohibits a plaintiff who has a contract claim from recovering tort damages for purely economic losses in the absence of personal injury or damage to ‘other property’ ”).

Nonetheless, relationships created by contract can give rise to affirmative duties imposed by law. For example, although limited in scope, a bailment invariably gives rise to tort liability when the bailee takes possession of the bailor’s property, separate and apart from the liability imposed by the parties’ contract. Prosser & Keeton, supra, § 92, at 658. “The obligations as between parties to such contracts are not always obligations based entirely on the manifested intent of the parties.” Ibid. See also Flintkote Co. v. Dravo Corp., 678 F.2d 942, 946 (11th Cir.1982)(recognizing that duties can be imposed on manufacturers and suppliers independent of contract, such as duty to use reasonable care not to place defective products in the market).

As explained by this Court in Walker Rogge, supra, 116 N.J. at 540, 562 A.2d 208, relationships can be established that “conceivably sound in both tort and contract, such as the relationship between physician and patient.” Professionals such as lawyers and accountants also have been found liable under both tort and contract theories for economic losses sustained due to negligent misrepresentations made while contractual services were being performed. Prosser & Keeton, supra, § 92, at 659.

Several New Jersey cases illustrate the legal analysis that courts have applied in determining whether a party’s claim sounds in contract or tort. In Juliano v. Gaston, 187 N.J.Super. 491, 455 A.2d 523 (App.Div.1982), the plaintiff homeowners brought a negli *312 gence claim against one of the subcontractors who did the masonry, brick, plaster and waterproofing work for the company that had sold them their house. There was no direct contractual relationship between the parties. The defective construction required extensive repairs. The Appellate Division held that the plaintiffs had properly asserted a negligence claim against the defendant subcontractor, rejecting the defendant’s argument that such claims required either personal injury or consequential damage to property. The court cited to an Indiana Supreme Court decision that recognized a subsequent home purchaser’s right to seek economic damages from the original builder-vendor in a negligence action:

The contention that a distinction should be drawn between mere ‘economic loss’ and personal injury is without merit. Why there should be a difference between an economic loss resulting from injury to property and an economic loss resulting from personal injury has not been revealed to us. When one is personally injured from a defect, he recovers mainly for his economic loss. Similarly, if a wife loses a husband because of injury resulting from a defect in construction, the measure of damages is totally economic loss. We fail to see any rational reason for such a distinction.

[187 N.J.Super. at 498, 455 A.2d 523 (quoting Barnes v. Mac Brown and Co., Inc., 264 Ind. 227, 342 N.E.2d 619 (1976)).]

The plaintiff homeowners in Aronsohn v. Mandara, 98 N.J. 92, 484 A.2d 675 (1984), sued the defendant contractors after discovering drainage problems caused by defects in the patio built by the defendants before plaintiffs purchased the home. The suit was based on strict liability, negligence, and breaches of express and implied warranties. This Court found that because the contract between the original homeowner and defendants did not contain a non-assignability clause, the defendants’ contractual obligations had been assigned to the plaintiffs. Id. at 99, 484 A.2d 675. We emphasized that the plaintiffs were attempting to “seek[] the benefit of the bargain they made in their agreement to purchase the home.” Id. at 98, 484 A.2d 675. The Court observed that although “[w]e do not intend to exclude the possibility that a cause of action in negligence would be maintainable,” it nevertheless was unnecessary to “decide the validity of the plaintiffs’ negligence claim, since ... the contractor’s negligence would constitute a *313 breach of the contractor’s implied promise to construct a patio in a workmanlike manner.” Id. at 107, 484 A.2d 675.

In New Mea, supra,