Ernest W. Hahn, Inc. v. Armco Steel Co.

Decision Date25 September 1979
Docket NumberNo. 15258,15258
PartiesUTAH 79-199 ERNEST W. HAHN, INC., and Lester R. Giegerich, for and on behalf of Western Properties Co., a limited partnership as general partners of Fashion Place Associates, a limited partnership, for and on behalf of Fashion Place Associates, Plaintiff and Appellant, v. ARMCO STEEL COMPANY, a corporation, Defendant and Respondent.
CourtUtah Supreme Court

Alan L. Sullivan of Van Cott, Bagley, Cornwall & McCarthy, Wallace R. Lauchnor of Bayle & Lauchnor, John P. Ashton, of Prince, Yeates, Ward & Geldzahler, Salt Lake City, for plaintiff and appellant.

Glenn C. Hanni of Strong & Hanni, Salt Lake City, for defendant and respondent.

WILKINS, Justice:

This is a case for damages resulting from a partial collapse of the roof of a shopping mall, which at the time of the collapse had only been in operation approximately three months. The matter was tried before a jury in the District Court of Salt Lake County, which returned a special verdict finding the Defendant Armco Steel Company liable to the plaintiff, a limited partnership, under strict liability in tort, breach of implied warranty and negligence. The jury found that the plaintiff's general partner, who was also the mall's construction contractor, was contributorily negligent. The jury found damages in the sum of $857,940. The District Court entered a judgment on the special verdict in favor of the defendant and against the plaintiff, no cause of action. The court thereafter denied plaintiff's motion for entry of judgment on special verdict, or in the alternative for judgment n. o. v., or in the alternative for a new trial. Plaintiff appeals from the judgment entered below and from the order denying its motions.

Plaintiff, Fashion Place Associates, is a limited partnership wherein Ernest W. Hahn, Inc., a California corporation, and Western Properties Co., a limited partnership of Connecticut, are the general partners. Fashion Place Associates was formed to develop and operate a regional shopping center to be located in Murray, Utah. Plaintiff contracted with its general partner Ernest W. Hahn, Inc. ("Hahn") whereby Hahn agreed to furnish the necessary labor and materials for construction of the shopping center. Hahn subcontracted with Western Steel Company ("Western Steel") for Western Steel to perform all structural steel work for the shipping center. Western Steel subcontracted with Steel Erection and Rigging Company ("Steel Erection") for Steel Erection to do the actual erection of the structural steel. Western Steel also subcontracted with defendant to manufacture and sell to Western Steel the steel joists incorporated into the structural steel roof.

Plaintiff hired Leach, Cleveland and Associates ("Leach") to design the prepare plans and specifications for the development and construction of the shopping center. Leach, in turn, hired Samuel Schultz, Inc. ("Schultz") to serve as the structural engineer for the project and to do the actual designing of the structural steel system.

Plaintiff originally named as defendants Hahn, Leach, Schultz, Western Steel, Steel Erection and the named defendant here. Hahn subsequently moved to dismiss itself on the ground that plaintiff and Hahn were one and the same entity and therefore there was no justiciable controversy between them. This motion was granted and the complaint was dismissed as to Hahn. Thereafter, all of the then defendants with the exception of the named defendant settled before trial. At trial, the jury was advised, pursuant to stipulation, that other parties had been originally joined as defendants and that settlement had been made between them and plaintiff in the sum of $825,000.

The Fashion Place Mall was substantially completed in October, 1972, and opened for business at that time. Much of the completed area was leased to tenants who operated retail stores. The janitor at Fashion Place Mall testified that at about 2:00 a. m. on December 29, 1972, he heard a loud crash inside the mall. About a half hour after this initial crash he began to hear popping noises which increased in intensity and frequency until 7:38 a. m. when a substantial portion of the mall roof collapsed. The collapse occurred during the heaviest snowstorm on record for a 24-hour period in the Salt Lake Valley. Approximately 20-22 inches of snow fell in the Murray City area, which encompasses the mall location, from 1:00 p. m., December 28, 1972, to 1:00 p. m., December 29, 1972.

After the collapse Murray City hired a structural engineer to determine the cause of the collapse, to ensure integrity of the non-collapsed area of the mall, and to supervise remedial measures considered necessary. He determined that the mall was unsafe and had it closed until the structure could be strengthened by performing additional welding and other remedial measures. The structural steel system of the mall consisted of rows of tapered steel plate girders, both ends of which rested on top of long steel pipe columns. Short-span steel bar joists spanned between these rows of girders and were welded to the top flange of the girders. Corrugated steel decking was welded to the top chords of the steel bar joists, and the light-weight concrete fill was bonded to the top of the steel decking. Over this lightweight concrete was a layer of insulation and finally the roofing material itself.

Several engineering experts examined the site to determine the cause of the collapse. The experts disagreed as to its exact cause, and the causation problem monopolized the trial. Nine expert witnesses testified at trial, and the testimony showed that the roof collapse and the consequent damages could have had more than one proximate cause. These causes included: faulty structural design or construction (1) in that there should have been stiffeners or other lateral support at the tops of the columns to prevent the girders from buckling. (In addition, testimony was elicited that the Fashion Place Mall was designed to carry only a 20-pound per square foot live load, and that it was the practice of engineers in Salt Lake City County to design structures for a 30-pound per square foot live load, 1 and that the snow load on the collapsed portion was about 17-pounds per square foot); (2) as joists in the collapsed area were installed on a slope, shims or tilted bearing plates should have been installed to provide a more uniform bearing on the girder; (3) in that many of the columns and girders in the non-collapsed area were not plumb, (this problem reduced the load carrying capabilities of the girders); (4) because excessive concrete was poured to level the roof (adding extra weight), in response to a problem created by a column in the collapsed area having been erected 8-10 inches too short; and (5) as defective welds were made on the lower connection of the end diagonal (the W-1 bar) of the defendant's bar joists.

Specifically, Murray City's expert, Mr. Coon, testified that the collapse was caused by faulty welds on the end diagonal connection of the bar joists. Defendant's experts admitted that those welds were not of the quality they would expect. Evidence disclosed that once a weld has been painted, there is apparently no reliable way to test its quality. This being so, Mr. Coon required plaintiff to re-weld all of the end diagonal connections on every bar joist in the mall. Additionally, Mr. Coon required that stiffeners be welded into the unframed web endings of the tapered girders to correct what he considered to be a design defect. 2

Plaintiff prayed for relief for damages incurred in the restoration of the collapsed area, for remedial measures required by Murray City in the non-collapsed area of the mall, for lost amounts claimed by the tenants while the building was closed, and for the lost income from the tenants during that time. The parties stipulated that if witnesses were called to testify, they would testify that plaintiff incurred losses in the amount of $1,493,947.20. Plaintiff presented evidence as to an additional $84,417.79, thus bringing plaintiff's claim to $1,578,364.99. 3

The jury was asked to determine what sum would compensate plaintiff for damages sustained As a result of the acts of defendant. The jury, in its special verdict, found the sum to be $857,940.00. The District Court, however, entered a judgment in favor of the defendant and against the plaintiff, no cause of action. The damages will be discussed more thoroughly, Infra.

Plaintiff raises three main issues on appeal: first, the District Court erred in holding that contributory negligence is a defense to strict liability and to breach of implied warranty and in entering a judgment of no cause of action; second, the Court improperly instructed the jury on the issue of plaintiff's negligence; and third, the Court erred in denying plaintiff's motion for entry of judgment on this special verdict for $857,940.00.

STRICT PRODUCTS LIABILITY AND BREACH OF IMPLIED WARRANTY

At trial the jury found that the defendant was negligent, that it was strictly liable to the plaintiff, and that it had breached its implied warranty to the plaintiff, that in all of these matters there was proximate cause, and that defendant was liable in damages to plaintiff. The jury also found that the plaintiff was contributorily negligent and that plaintiff's negligence was also a proximate cause of its damage. On the basis of these findings the District Court ruled that plaintiff's contributory negligence barred its recovery on all three counts.

The law of strict products liability essentially began with MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), in which the New York Court of Appeals held the manufacturer of an automobile liable to the driver for his injuries sustained when the vehicle's wheel collapsed because the wheel had been made with defective wood. The MacPherson case mandated that a manufacturer of a product is liable to...

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