concurring.
I concur in the result reached by the majority because I also believe reversal of the entry of summary judgment for Galloway is required by Oates v. JAG, Inc. However, I respectfully decline to join in the majority’s gloss upon Oates “that a subsequent purchaser of a home has a cause of action against the home’s builder where the builder’s negligence in building a structure on the premises has materially affected the use and enjoyment of the house itself.” (Emphasis added).
Neither plaintiffs nor Galloway, in their briefs to this Court, advocate the “materially affected” test adopted by the majority in its holding, a question arguably never determinable as a matter of law. Rather, plaintiffs assert that:
the application of Oates should not be limited to the specific dwelling unit .... The retaining wall in question was just as much a part of the home purchased by [plaintiffs] as a detached garage, paved driveway, or other fixture which a *218builder may construct on a lot in order to complete a property for sale.
Plaintiffs’ further assert liability for negligent construction should not be limited to fixtures actually “attached to or physically a part of the actual house structure.”
I find plaintiffs’ argument persuasive, as well as the majority’s comment that “[t]o limit the builder’s duty to the four walls of the house itself would be formalistic . . . .” It is uncontroverted that the retaining wall in question, although not physically attached to the house structure, was part and parcel of the original construction of the residential premises purchased by plaintiffs, and indeed part of the purchase contracted for by the original buyers. As such, it fell within a fair interpretation of the purview of Oates without the majority’s imposition of a new “materially affected” test, and summary judgment should not have been entered against the plaintiffs herein.
Accordingly, I concur only in the result reached by the majority.