Besserman v. Town of Paradise Valley, Inc.

• Decision Date: 19 July 1977
• Docket Number: CA-CIV,No. 1,1
• Citation: 116 Ariz. 471,569 P.2d 1369
• Parties: Richard BESSERMAN and Rosalie Besserman, husband and wife, Appellants and Cross-Appellees, v. TOWN OF PARADISE VALLEY, INC., Appellee and Cross-Appellant. 3100.
• Court: Arizona Court of Appeals

Page 1369

569 P.2d 1369

116 Ariz. 471

Richard BESSERMAN and Rosalie Besserman, husband and wife, Appellants and Cross-Appellees, v. TOWN OF PARADISE VALLEY, INC., Appellee and Cross-Appellant.

No. 1 CA-CIV 3100.

Court of Appeals of Arizona, Division 1, Department B.

July 19, 1977.

Rehearing Denied Sept. 13, 1977.

Review Denied Oct. 12, 1977.

William B. Revis, Ltd. by William B. Revis, Phoenix, for appellants and cross-appellees.

Udall, Shumway, Blackhurst, Allen, Bentley & Lyons by John H. Lyons, Mesa, for appellee and cross-appellant.

OPINION

WREN, Acting Presiding Judge.

Richard and Rosalie Besserman bring this appeal from the granting of summary judgment in favor of the Town of Paradise Valley. Their complaint had alleged that the town was liable for damages caused by a bad faith and malicious inspection of their home performed by the town's building inspector and for damages based on theories of fraud and third-party beneficiary contract. We find that the summary judgment was proper.

Appellant's contention that the town is liable for the bad faith and malicious inspection is premised upon two theories: (1) that the municipality is liable under the doctrine of respondeat superior for the tortious conduct of its agents and employees and (2) that by adopting § 202(g) of the Uniform Building Code the town created liability by implication against the building inspector and consequently against the town through respondeat superior.

An actionable tort involves a duty owed by defendant to plaintiff, breach of that duty and injury proximately caused by the breach. Ivicevic v. Town of Glendale, 26 Ariz.App. 460, 549 P.2d 240 (1976). The issue before us is whether the town owed a duty to the Bessermans to carefully inspect their home during its construction.

An analysis of the duty owed by public officers and governmental entities first involves a determination of whether the duty is one owed to the public generally, the breach of which would not support an individual claim for damages. Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969). In Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973), the Court of Appeals considered a claim for damages for a negligent fire inspection performed by a City of Tucson employee. The Court held that the statutory duty to perform fire inspections is a duty owed to the public and any breach is not actionable by a private person who was damaged. Arizona has similarly held that the duty owned by police officers is a public not an individual duty. Massengill v. Yuma County, supra; Ivicevic v. City of Glendale, supra. Dicta in the Duran opinion drew an analogy between fire codes and building codes and cited with approval in Duran is a Minnesota case holding that a building inspector's duty extends to the public generally and negligent performance will not support an individual cause of action. Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972); also, Georges v. Tudor, 16 Wash.App. 407, 556 P.2d 564 (1976); contra, Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976).

The issue of the duty owed by the town under a building inspection ordinance is controlled by the Duran decision. The services performed by a building inspector are for the benefit of the public generally and not the individual and no cause of action will lie, absent special circumstances, for damages caused by a failure to inspect properly. Those special circumstances which will narrow the public duty to one owed to a particular individual are set forth in Duran v. City of Tucson, supra and Ivicevic v. City of Glendale, supra and clearly were not present in this case. ¹

Appellant argues that even if a building inspector generally owes no duty to individuals, the Town of Paradise Valley has created such a private duty for malicious and bad faith inspections by its adoption of § 202(g) of the Uniform Building Code and through respondeat superior, is vicariously liable for damages caused by such a malicious, bad faith inspection. Section 202(g) provides "(g.) Liability. The Building Official or any employee charged with the enforcement of this Code, acting in good faith and without malice for the city in the discharge of his duties, shall not thereby render himself liable personally and he is hereby relieved from all personal liability for any damage that may accrue to persons or property as a result of any act required or by reason of any act or...