Adams v. Dean Roofing Co., Inc., 85-266-II
| Decision Date | 07 March 1986 |
| Docket Number | No. 85-266-II,85-266-II |
| Citation | 715 S.W.2d 341 |
| Parties | Ray ADAMS, Jr. and Fred A. Greer, Plaintiffs-Appellees, v. DEAN ROOFING COMPANY, INC., Defendant-Appellant. DEAN ROOFING COMPANY, INC., Third-Party Plaintiff-Appellant, v. Jim CATHEY, Third-Party Defendant-Appellee. 715 S.W.2d 341 |
| Court | Tennessee Court of Appeals |
Billy C. Jack, Columbia, for plaintiffs-appellees.
Jerry C. Colley, Columbia, for defendant-third-party plaintiff-appellant.
Richard T. Matthews, Hardin, Matthews & Ewing, Columbia, for third-party defendant-appellee.
This is an appeal by defendant and third-party plaintiff, Dean Roofing Company, Inc. (Dean), from the trial court's judgment awarding plaintiffs $120,000 damages and dismissal of its suit for indemnity or contribution from third-party defendant, Jim Cathey.
The pertinent facts are as follows:
In 1971, Cathey designed and built for his own use a commercial building in Columbia, Maury County, Tennessee.
In January, 1977, Cathey sold the building to plaintiffs. In December, 1977, a severe hail storm damaged the roof of the building to such an extent that a new roof was required. Dean contracted with plaintiffs to replace the roof and to do other necessary repairs. The new roof was completed in October, 1978.
In replacing the roof, Dean reduced the size of the drains from four inches to two and a half inches. This reduction decreased the flow rate 71.5 per cent.
In January, 1979, after substantial rain, sleet and snow had fallen, the roof of plaintiffs' building collapsed, causing the entire building to be destroyed.
Plaintiffs sued Dean and Dean filed a third-party complaint against Cathey, alleging that Cathey's negligence in constructing the building was the proximate cause of the building's collapse.
Following a bench trial, the court entered a judgment awarding plaintiffs the sum of $120,000 against Dean and took under advisement Dean's entitlement to contribution or indemnity from Cathey. Subsequently, an order was entered dismissing Dean's third-party complaint.
At oral argument, Dean conceded that there was evidence in the record from which the court could find that it was negligent in reducing the size of the drains. However, Dean earnestly insists that Cathey's negligence in constructing the building was a proximate cause, and that Dean is therefore entitled to contribution from Cathey.
Dean has presented two issues. One, "[w]hether the designer and builder of an improvement to real property is relieved of all liability upon completion and acceptance of his work," and, two, "[w]hether ... Dean ... is entitled to indemnity or contribution from ... Cathey, when Cathey's negligence is the primary or active cause of injury."
For the purposes of this opinion only, we will assume that Cathey was not relieved of "liability upon completion and acceptance of his work."
We re-state the second issue as follows: Whether there is any credible evidence that Cathey was negligent in designing and constructing the building.
Ron Elrod, an engineer, testified on behalf of plaintiffs that (1) if the drains had not been reduced in size the water would have flowed from the roof and the building would not have collapsed, and (2) Cathey, in constructing the building, did not construct it to the standards of the Southern Standard Building Code (Code), and that if the building had been constructed according to the Code, the building would not have collapsed even though the drains had been reduced in size.
We have reviewed this record in detail and Mr. Elrod's testimony is the only evidence we find of alleged negligence on Cathey's part.
If Cathey was negligent in the design and construction of the building, that negligence occurred in 1971. The problem we have is that there is no proof in the record concerning what the Code required in 1971, if there was in fact a Code in effect in 1971, and if there was, whether the City of Columbia had adopted the Code in 1971.
This Court cannot take judicial notice of municipal ordinances. Grady v. Bryant, 506 S.W.2d 159 (Tenn.App.1973). Courts cannot and do not take judicial notice of city ordinances in cases involving city ordinances such as the adoption of the Southern Standard Building Code by the City of Columbia. It is necessary for the parties to stipulate as to the...
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