588 F.2d 454 (5th Cir. 1979), 76-2997, Uniroyal, Inc. v. Hood

Docket Nº:76-2997.
Citation:588 F.2d 454
Party Name:UNIROYAL, INC., Plaintiff-Appellant, v. George K. HOOD et al., Defendants-Third Party Plaintiffs-Appellees, USCO Services, Inc., Third Party Defendant.
Case Date:January 25, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 454

588 F.2d 454 (5th Cir. 1979)

UNIROYAL, INC., Plaintiff-Appellant,


George K. HOOD et al., Defendants-Third Party Plaintiffs-Appellees,

USCO Services, Inc., Third Party Defendant.

No. 76-2997.

United States Court of Appeals, Fifth Circuit

January 25, 1979

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Edward W. Killorin, David M. Brown, Law Offices of Killorin & Schroder, Atlanta, Ga., for plaintiff-appellant.

Hugh E. Wright, W. Lyman Dillon, Philip S. Coe, Atlanta, Ga., for George K. Hood, William B. Hood, & James B. Hood.

Sidney F. Wheeler, John M. Hudgins, IV, Ben S. Williams, Atlanta, Ga., for Sam Hodges Co.

Appeal from the United States District Court for the Northern District of Georgia.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

AINSWORTH, Circuit Judge:

In this Georgia diversity case, Uniroyal, Inc., a New Jersey corporation with its principal place of business in Connecticut, appeals from a judgment denying recovery from Hood Brothers, a Georgia partnership, and Sam Hodges Company, a Georgia corporation, for damage to shoes stored in a warehouse owned by Hood Brothers and leased to Uniroyal. The damage occurred, consequent to a severe storm, when rainwater flowed into the warehouse after running off an adjacent construction site, also owned by Hood Brothers, upon which Sam Hodges Company, a general contractor, was constructing additional warehouse space. The district court entered judgment in favor of Hood Brothers upon a directed verdict and in favor of Sam Hodges Company upon a jury verdict in response to a special interrogatory. We affirm as to both defendants.


In 1968, Hood Brothers purchased a tract of land in Forest Park, Georgia, near the Atlanta airport. At the time of purchase, a warehouse was located on the western portion of the tract. The warehouse had been occupied since 1961 by Uniroyal pursuant to a long term lease. The original lessors assigned the lease to Hood Brothers as part of the purchase. Uniroyal has used the warehouse for storage of shoes, sandals, and other merchandise. USCO Services, Inc. has operated the warehouse for Uniroyal.

In October of 1972, Hood Brothers agreed with Uniroyal to construct and lease to it an addition to the existing warehouse to be situated on the vacant eastern portion of the tract. On October 1, 1972, Hood Brothers and Uniroyal executed a written lease covering the proposed new addition, to become effective one month following the completion of construction. On November 17, 1972, Hood Brothers, as owner, and Sam Hodges Company, as general contractor, signed a construction contract for the new warehouse facility. Previously, USCO Services and Uniroyal had supplied specifications for the project to Sam Hodges Company, thereby inviting submission of a bid for the construction contract. Subsequently, Hood Brothers selected Sam Hodges Company from a list of four contractors submitting bids.

Sam Hodges Company began construction of the new warehouse in the last week of November of 1972 with the grading and leveling of the vacant lot. Subsequently, during the three-month period from February to April of 1973, two concrete floor slabs, measuring approximately 225,000 square feet, were poured. A 4-foot gap, 6 to 8 inches deep, running north and south, separated the two slabs from the east wall of the existing warehouse. The gap was intended to accommodate either footings

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for a firewall or pillars. It also served as a drainage ditch protecting the existing warehouse from water running off the concrete floor slabs. Another similar gap or ditch, approximately 16 feet wide, ran east and west, separating the two floor slabs and intersecting the other to form a T.

Prior to the commencement of construction, the vacant lot was generally sloped from northeast down to southwest. A ditch capable of carrying accumulated surface water ran across the lot from north to south. With the leveling and grading of the site and the pouring of the concrete floor slabs, the flow of surface water on the site was altered. The presence of the concrete slabs caused a general increase in flow due to the elimination of absorption into the earth. Furthermore, the direction of the flow was altered by the configuration of the slabs. Evidently the portion of the slabs closest to the existing warehouse sloped gradually from east to west, with a total drop, imperceptible to the naked eye, of about 23/4 inches. The slope was necessary in order to bring the floor of the new addition flush with that of the existing warehouse. The sloped portion constituted, approximately, the western one-fifth of the total floor area. The remaining floor area was flat. Surface water flowed off the flat part of the slabs in all directions and off the sloped part in an east to west direction into the 4-foot ditch or gap separating the slabs from the existing warehouse. Preformed concrete walls, poured during late April and early May of 1973, lay flat on the slabs, prior to being tilted up into position. These walls diverted further surface water in a westward direction toward the existing warehouse. In sum, essentially uncontradicted testimony indicates that by mid-May of 1973, the slope of the slabs and the presence of the preformed walls, compounded by the nonabsorbent character of concrete, had altered the natural flow of surface water on the construction site in such a way that greater quantities flowed in a westward direction toward the eastern wall of the existing warehouse.

One of the doors located on the east wall of the existing warehouse was a fire door beneath which there was an opening of about 1 inch. Testimony indicates that both Sam Hodges Company and USCO Services knew of this opening but that Hood Brothers did not. Through that opening, on the weekend of May 19-20, 1973, rainwater entered the warehouse after collecting in and overflowing the 4-foot gap or ditch between the warehouse and the concrete floor slabs. According to the testimony of a USCO employee, the water accumulated to a depth of almost 7 inches, primarily in the southeast portion of the warehouse where cardboard boxes containing shoes and sandals were stacked on the floor. The flooding allegedly damaged 62,410 pairs of footwear.

Meteorological data recorded at the Atlanta airport, nearby the construction site, indicate that 2.6 inches of rain fell between 9 a. m. on May 19 and 6 a. m. on May 20. Of that total, approximately 2.1 inches fell in the nine-hour period from 9 p. m. on May 19 to 6 a. m. on May 20. In addition, gusts of wind reached 42 m. p. h., the highest velocity recorded in the first five months of 1973. The meteorological evidence indicates that several rainstorms of comparable severity in precipitation occurred in the first five months of 1973 (one in January, with almost 4 inches falling in a 19-hour period and 3 inches in a 5-hour period; one in February; two in March; one in April; and one in May, subsequent to the storm of May 19-20). No flooding of the warehouse resulted from any storm except that of May 19-20.

The evidence indicates that the flooding occurred because an obstruction in the 4-foot gap or ditch separating the concrete floor slabs from the warehouse prevented accumulated surface water from flowing off the site. The testimony as to the nature of the obstruction was conflicting. The warehouse manager, a USCO Services employee, testified that the ditch was dammed up by dirt. Two Sam Hodges Company

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employees, the building superintendent and the project manager, testified that the flow of water in the ditch was impeded by construction material and debris either blown or washed into the ditch during the storm. Both testified that the wind was strong enough to blow a lamp stand weighing over 100 pounds across the slab.

In the aftermath of the flooding, Uniroyal sued both Hood Brothers, the property owner (and Uniroyal's landlord), and Sam Hodges Company, the contractor. Uniroyal primarily contended that Sam Hodges Company and, derivatively, Hood Brothers were liable for damage caused to Uniroyal's goods on account of having negligently altered the flow of surface water on the construction site so that it entered the warehouse. Uniroyal also attempted to support its claim against Sam Hodges Company on theories of trespass and nuisance. In addition, Uniroyal sought recovery from Hood Brothers, as owner and lessor of the warehouse and the construction site, under various theories of tort, contract, and property law, without regard to liability on the part of Sam Hodges Company. Both Hood Brothers and Sam Hodges Company filed a third party claim against USCO Services, Inc., the warehouse operator, seeking contribution or indemnity should either defendant be held liable to Uniroyal.

At the close of all the evidence, the trial judge granted Hood Brothers' motion for a directed verdict and, as a result, also granted USCO Services' motion for a directed verdict in regard to Hood Brothers' third party complaint. In addition, on defendant Sam Hodges Company's motion, the court refused to present Uniroyal's trespass and nuisance theories to the jury. As a result, the judge submitted to the jury only the claim of negligence on the part of Sam Hodges Company and the complementary third party claim by Sam Hodges against USCO Services. The court outlined Uniroyal's allegations of negligence and instructed the jury on the general law of negligence and on the defendant's affirmative defense of an act of God.

The court submitted eight special interrogatories to the jury. The first interrogatory asked: "Were the damages in this case caused by an act of God?" If the answer to that question was "no," the jury was instructed to continue and...

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