Boise Car and Truck Rental Co. v. Waco, Inc.

• Citation: 702 P.2d 818,108 Idaho 780
• Decision Date: 18 June 1985
• Docket Number: No. 15458,15458
• Parties: BOISE CAR AND TRUCK RENTAL COMPANY, an Idaho corporation, Plaintiff-Appellant, v. WACO, INC., an Idaho corporation, and Arthur Donald Watkins, Defendants-Cross Defendants-Respondents, and Contractors Equipment Supply Company, Defendant-Cross Claimant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 818

702 P.2d 818

108 Idaho 780

BOISE CAR AND TRUCK RENTAL COMPANY, an Idaho corporation, Plaintiff-Appellant, v. WACO, INC., an Idaho corporation, and Arthur Donald Watkins, Defendants-Cross Defendants-Respondents and Contractors Equipment Supply Company, Defendant-Cross Claimant-Respondent.

No. 15458.

Supreme Court of Idaho.

June 18, 1985.

James E. Risch of Risch, Goss, Insinger & Salladay, Boise, for plaintiff-appellant.

James W. Kiser, Boise, for respondent Contractors Equipment Supply Co.

R. B. Rock and Mark S. Prusynski of Moffatt, Thomas, Barrett & Blanton, Boise, for respondents Waco, Inc. and Arthur Donald Watkins.

SHEPARD, Justice.

This is an appeal from a summary judgment in favor of two defendants and from partial summary judgment in favor of a third defendant. Plaintiff filed this action to recover for damages to personal property sustained during a windstorm, which blew the roof off of a structure belonging to defendants and onto plaintiff's adjacent property. We affirm.

On June 30, 1981, a windstorm blew the roof off of an airplane hangar at Boise Airport, causing damage to plaintiff Boise Car and Truck Rental Company. Farm Development Corporation was then the owner of the hangar, which was located on property leased from the City of Boise. Boise Car filed an initial complaint against both Farm Development and a previous owner of the hangar, WACO, Inc. Upon motion, summary judgment was granted for Farm Development and against Boise Car. That judgment was final, and no appeal has been taken therefrom by Boise Car. Therefore, Farm Development is not a party to this appeal.

Thereafter, plaintiff Boise Car filed an amended complaint against all of the prior owners of the building, including WACO, Inc., Arthur Donald Watkins, and Contractors Equipment Co. Those parties, in turn, joined as third party defendants Smith and Kangas Engineers, Inc., and Ralph Kangas, in his individual capacity. The trial court granted summary judgment in favor of Contractors Equipment Supply and Watkins. At the same time, the trial court granted summary judgment to Smith and Kangas Engineers, Inc., and to Ralph Kangas personally. The trial court granted partial summary judgment to WACO, Inc., and denied Boise Car's motion for summary judgment. The trial court certified as final and appealable those summary judgments in favor of Contractors Equipment, Watkins, Smith and Kangas Engineers, Inc., and of Kangas as an individual. Boise Car attempts by this appeal to overturn the summary judgments in favor of Contractors Equipment and Watkins, the partial summary judgment in favor of WACO, Inc., and the denial of Boise Car's own motion for summary judgment. As we view the situation, the sole parties to this appeal are Contractors Equipment and Watkins, and the sole issue presented is the validity of the summary judgments issued in their favor.

The history of the hangar in question appears largely uncontroverted. In 1963, Contractors Equipment leased real property at the Boise Airport from Boise City for the purpose of operating Sparks Flying Service. In 1965, Contractors Equipment contracted with an independent contractor, George Singley, who is not a party to this action, to construct an aircraft hangar 45 feet deep and 200 feet wide. The plans and specifications for the structure were drawn by an engineer named Ebling, of Portland, Oregon. Ebling is also not a party here. The roof trusses and roof connections was designed by Truss Fab, Inc., of Clackamas, Oregon, who again is not a party.

On April 6, 1967, Contractors Equipment assigned the Boise City lease and transferred possession of the hangar building to one Arthur Donald Watkins. On December 31, 1968, Watkins assigned the lease and transferred the building to WACO, Inc. In June 1969, while WACO, Inc. was occupying the hangar, a fuel truck struck a vertical column of the building, causing a large portion of it to collapse. In the spring of 1970, WACO, Inc. decided that only approximately one-third of the original building should be reconstructed. The "new" building would be only 80 feet wide, as contrasted with its original width of 200 feet. WACO, Inc. contracted with Smith and Monroe Engineers, Inc., which has not been joined herein, to prepare the reconstruction plans. Ralph Kangas, then an employee of Smith and Monroe, prepared those plans. The Kangas plans were used by Idaho Steel Builders, not a party here, to perform the necessary reconstruction, which was then completed in early 1970. In 1974, WACO, Inc. assigned its lease and conveyed the building to Farm Development Corporation, who was in possession and control of it when the roof blew off in 1981.

Following the June 30, 1981 incident, Ralph Kangas, then of Smith and Kangas Engineers, and Russell Westbrook of Conveyor Engineering, Inc., inspected the building and concluded that defective connections at the north and south ends of the roof beams had caused the loss of the roof in the windstorm. Deposition evidence established, at least at the point of summary judgment, that one of the two causal defects was a construction defect and the second was a design defect, and that the allegedly defective connections were installed during the original 1966 construction. Deposition testimony also indicated, without contradiction, that the nature of these defects was such that they would not have been discovered by a lay person. It is further uncontroverted that Contractors Equipment had no knowledge of the allegedly defective roof connectors.

In its amended complaint against Contractors Equipment, Watkins and WACO, Inc., Boise Car alleged that the defendants created, or negligently permitted to remain on the land, a structure which involved an unreasonable risk of harm to others outside the land; that defendants breached a lease agreement, of which Boise Car was a third party beneficiary; and that those defendants failed to warn Boise Car of defects in the building.

The trial court entered summary judgment in favor of Contractors Equipment and Watkins on all counts of Boise Car's complaint. As to WACO, Inc., the trial court granted partial summary judgment on counts two and three of the complaint, which counts alleged that WACO, Inc., breached a lease agreement, of which Boise Car was a third party beneficiary, and that WACO had failed to warn Boise Car of defects in the hangar. The trial court denied summary judgment in favor of WACO, Inc., as to count one, thereby holding that material issues of fact existed as to WACO, Inc.'s negligently permitting the hangar to remain upon the land in an unreasonably dangerous condition.

Two issues on this appeal merit only summary treatment. First, as to the partial summary judgment in favor of WACO, Inc., such was not certified as final under I.R.C.P. 54(b). Since there remain material issues of fact for resolution of this issue at trial, the partial summary judgment is not now properly before this Court. Second, Boise Car's motion for summary judgment in its own favor having been denied, that order likewise is not appealable. State of Idaho, Department of Law Enforcement v. One 1955 Willys Jeep, 100 Idaho 150, 595 P.2d 299 (1979).

The trial court, in its well-reasoned memorandum decision and order, noted, "Summary judgment is appropriate only when there is no genuine issue of material fact after the pleadings, depositions, admissions and affidavits have been construed most favorably to the opposing party and the moving party is entitled to judgment as a matter of law," citing Moss v. Mid-American Fire and Marine Ins., 103 Idaho 298, 647 P.2d 754 (1982); Kline v. Clinton, 103 Idaho 116, 645 P.2d 350 (1982). We agree.

In granting summary judgment to Contractors Equipment and Watkins, the trial court held that the cause was governed by § 373 of the Restatement (Second) of Torts (1965), entitled "Dangerous Conditions Created Before Vendor Transfers Possession." We are cited to no authority wherein Idaho, or for that matter any other jurisdiction in the country, has specifically adopted said section of the Restatement (Second) of Torts. We need not, however, decide in this proceeding whether this Restatement section should be...