Farmington Plumbing v. Fischer Sand

Decision Date13 July 1979
Docket NumberNo. 47835.,47835.
Citation842 Minn. 1979,281 NW 2d 838
PartiesFARMINGTON PLUMBING & HEATING COMPANY, et al., Plaintiffs, v. FISCHER SAND AND AGGREGATE, INC., Appellant, Wenzel Plumbing and Heating, Inc., and Hilite Electric Company, Respondents, Peoples Natural Gas Company, Defendant.
CourtMinnesota Supreme Court

Maun, Hazel, Green, Hayes, Simon & Aretz and M. C. Green, St. Paul, for Fischer Sand & Aggregate, Inc.

Mahoney, Dougherty & Mahoney, Kenneth P. Gleason and Richard P. Mahoney, Minneapolis, for respondents.

Heard before TODD, SCOTT and WAHL, JJ., and considered and decided by the court en banc.

WAHL, Justice.

Fischer Sand and Aggregate, Inc. (Fischer) appeals a judgment of the Dakota County District Court in an action brought by plaintiffs against Fischer, the City of Farmington, Peoples Natural Gas Company and Wenzel Plumbing and Heating/Hilite Electric Company (Hilite) for damages caused by a gas explosion on July 24, 1974.1 The jury found that all four defendants were negligent but that only the negligence of Fischer and Hilite was a direct and proximate cause of plaintiffs' damages. The jury apportioned 25 percent of the liability to Fischer, 75 percent to Hilite. Fischer challenges the apportionment of negligence and the trial court's refusal to relieve it of its liability. We affirm.

In May 1974, the City of Farmington contracted with Fischer, the general contractor, to convert an alley in downtown Farmington into a pedestrian walkway. Fischer subcontracted with Hilite to place underground electric lines in the alley.

Approximately 10 days before the explosion Fischer began to do preliminary grading on the alley. At this point two gas company employees approached the Fischer employee who was grading to ensure that all the gas lines in the alley had been properly located. The gas company employee located the gas lines, marked the approximate locations on the ground with paint, and dug down to expose the gas lines estimated to be some 24 inches below the alley surface. The Fischer employee then proceeded to grade 2 to 8 inches of earth off the top of the alley and ran the grader blade over the holes which exposed the gas lines, covering them from view and obscuring the paint marks, without disturbing the gas lines. No Fischer employee informed any Hilite supervisor or employee of the location of the gas lines or that several inches of earth had been removed.

On July 24, Hilite dug a trench through the alley. In the process the backhoe operator snagged and bent a rusty pipe. Prior to this date both the operator and his foreman had inspected the site. At that time they met an unidentified gas company employee2 who showed them the location of two gas lines, neither of which was in the area where the pipe was snagged, and informed them that the lines were 30 inches below the surface. Because Hilite had to bury the line only 24 to 28 inches below the surface, and because they had not been informed that 2 to 8 inches had been graded off the alley, the backhoe operator and his foreman concluded, after inspecting the snagged pipe, that it was too close to the surface and too rusty to be a gas line. They finished digging the trench, laid the electric line, and filled in the trench covering the snagged pipe. They informed no one of the snagged pipe until after the explosion which occurred 4 to 9 hours later.

Investigation of the explosion revealed a leak in the elbow connecting the snagged pipe to a building on the north side of the alley. The leaking gas seeped upward into the building where it eventually was ignited by a pilot light, causing the explosion and fire which damaged plaintiffs' property.

The issues on appeal are: (1) whether the evidence is sufficient to support the verdict that Fischer was 25 percent negligent and that such negligence was a proximate cause of plaintiffs' injuries; (2) whether Fischer is entitled to indemnity from Hilite; (3) whether Hilite is liable for Fischer's attorneys fees; and (4) whether Hilite breached the subcontract by failing to obtain the requisite amount of insurance.

1. We determine first the sufficiency of the evidence to support the findings that Fischer was 25 percent negligent and that such negligence was a proximate cause of plaintiffs' damage. In examining a jury verdict on appeal the evidence must be considered in the light most favorable to the prevailing party, and the verdict must be sustained if it is possible to do so on any reasonable theory of the evidence. The verdict will not be disturbed unless it is manifestly and palpably contrary to the evidence. Carpenter v. Mattison, 300 Minn. 273, 276, 219 N.W.2d 625, 628 (1974). Based on the evidence in this case the jury could have concluded that Fischer was negligent in failing to inform Hilite of the location of the gas lines and that its employees had graded 2 to 8 inches off the surface of the alley. The verdict is consistent with this view of the evidence.

Fischer argues further that Hilite's negligence constitutes a superseding cause which relieves it of liability. To be a superseding cause, intervening negligence must in no way be caused by another party's negligence. Bonhiver v. Graff, 311 Minn. 111, 118, 248 N.W.2d 291, 297 (1976). The jury could have concluded that the failure to report the damaged pipe was due in part to Fischer's failure to inform Hilite of the location of the gas lines and the grading of the alley. Given this, Hilite's negligence cannot be considered a superseding cause.

2. — 3. We must next determine whether Fischer is entitled to indemnity either because its negligence was wholly "vicarious and secondary," in contrast to Hilite's negligence, which was "active and primary," or because the subcontract provides for such indemnity. We rejected the active/passive analysis for indemnity cases in Tolbert v. Gerber Industries, Inc., 255 N.W.2d 362 (Minn.1977). In Tolbert we held that tortfeasors must accept responsibility for damages commensurate with their own relative culpability and limited allocation of loss in such cases to contribution. There is no claim for contribution in this case. Each party must pay its own proportionate share of plaintiffs' damages. Because Fischer does not come within any of the other categories of indemnity3 outlined in Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 104 N.W.2d 843 (1960), the only way Fischer can be indemnified in this case is if the subcontract so provides.

The subcontract and the contract must be read together to determine if Fischer is entitled to indemnity in this case because the subcontract incorporated certain provisions of the prime contract....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT