Board of Ed. of Ohio County v. Van Buren and Firestone, Architects, Inc.

• Decision Date: 17 June 1980
• Docket Number: No. 14639,14639
• Citation: 165 W.Va. 140,267 S.E.2d 440
• Court: West Virginia Supreme Court
• Parties: The BOARD OF EDUCATION OF the COUNTY OF OHIO, a W. Va. Corp. v. VAN BUREN AND FIRESTONE, ARCHITECTS, INC., an Ohio Corp. et al.

Page 440

267 S.E.2d 440

165 W.Va. 140

The BOARD OF EDUCATION OF the COUNTY OF OHIO, a W. Va. Corp. v. VAN BUREN AND FIRESTONE, ARCHITECTS, INC., an Ohio Corp. et al.

No. 14639.

Supreme Court of Appeals of West Virginia.

June 17, 1980.

Syllabus by the Court

1. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Point 3, Syllabus, Aetna Casualty and Surety Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. "Even if the trial judge is of the opinion to direct a verdict, he should nevertheless ordinarily hear evidence and, upon a trial, direct a verdict rather than try the case in advance on a motion for summary judgment." Point 1, Syllabus, Masinter v. Webco Company, et al., W.Va., 262 S.E.2d 433 (1980).

3. "Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though disputed, are such that reasonable men may draw different conclusions from them." Point 5, Syllabus, Hatten v. Mason Realty Company, 148 W.Va. 380, 135 S.E.2d 236 (1964).

McCamic & McCamic and Jeremy C. McCamic, Wheeling, Preiser & Wilson and Stanley E. Preiser, Charleston, for appellant.

O'Brien & Cassidy and Frank O'Brien, Jr., Wheeling, for Van Buren and Firestone, Architects, Inc.

Davis, Davis, Hall & Clovis and Fred L. Davis, Jr., Parkersburg; Thompson, Hine & Flory, William D. Ginn, William H. Wallace, William B. Leahy, Cleveland, Ohio, for Galbreath & Turner.

Schrader, Stamp & Recht and Frederick P. Stamp, Jr., Wheeling, for McMasters & Pa. Nat'l Mutual.

Bachmann, Hess, Bachmann & Garden and John B. Garden, Wheeling, for Pitt. Testing Lab.

Mead, Goodwin & Sadd and Thomas A. Goodwin, Wheeling, for Ohio Valley Testing.

NEELY, Chief Justice:

This is an appeal from a decision of the Circuit Court of Ohio County granting a motion for summary judgment. The appellant, the Board of Education of Ohio County, entered into contracts with eight parties for the construction of a new, consolidated high school. After the area surrounding the school building collapsed because the soil could not support construction, all eight parties were named as defendants in a negligence action. Three of the defendants the appellees, were absolved of any wrongdoing when their motions for summary judgment were granted. The appellant alleged that the defendants failed to conduct recommended soil stability tests or hire a soils engineer before beginning site preparation and, therefore, negligent preparation caused the eventual collapse of the areas surrounding the school building which were to be used for parking, basketball, etc. Due to the issues of fact presented by this action, and due to the premature granting of the motion for summary judgment before discovery had been completed, we reverse the Circuit Court.

The three appellees whose motions for summary judgment were granted are: Evans, Mechwart, Hambleton & Tilton, Inc., an Ohio corporation (hereinafter the "contractor"); Louis M. McMaster, Inc., a Pennsylvania corporation (hereinafter the "engineer"); and, Pennsylvania National Mutual Casualty Insurance Company, a Pennsylvania corporation (hereinafter the "bonding company"). They contend that their duties with respect to the site preparation plans and specifications did not encompass the scope of duties the appellant alleged in the complaint. The contractor contends that as a site excavation contractor its duties were specifically to furnish all services, labor, materials, and equipment to complete the site preparation work for the high school in accordance with the specifications prepared by the architect. The appellant argues that the Pittsburgh Testing Laboratory, which was hired to study site preparations, recommended that test borings be performed to analyze the slope stability and that the contractor had a copy of this report. Thus, the appellant argues that the contractor breached its contract with the Board of Education and breached all warranties made by it to the Board of Education, both express and implied, in that the contractor knew or should have known that the specifications were incorrect. ¹

Evidence suggesting that the engineer was negligent during the design stage of the construction had yet to be developed. It is established that the architect and his employed consultants, including the engineer, were responsible for the design, and that the failure of construction was probably due to a design fault; however, the extent of the engineer's responsibility to determine necessary test borings and percolation tests is not clear. Additional discovery would presumably clarify the r ole of the engineer during the design stage, particularly since the engineer's involvement in this case was based upon an oral contract made with the architect, Van Buren and Firestone Architects, Inc. Crucial to our...