Hunt v. Star Photo Finishing Co.

• Citation: 115 Ga.App. 1,153 S.E.2d 602
• Decision Date: 05 January 1967
• Docket Number: No. 42425,No. 3,42425,3
• Parties: Carver HUNT v. STAR PHOTO FINISHING COMPANY
• Court: Georgia Court of Appeals

Page 602

153 S.E.2d 602

115 Ga.App. 1

Carver HUNT v. STAR PHOTO FINISHING COMPANY.

No. 42425.

Court of Appeals of Georgia, Division No. 3.

Jan. 5, 1967.

Syllabus by the Court

A petition alleging that the roof of a building collapsed without warning shortly after plaintiff occupied the building as a tenant, because of negligent acts in creating the design so that when constructed according to the design the building was inherently and intrinsically dangerous to persons and property in the building, states a cause of action against the designing engineer, for property damages resulting from the collapse, which accrued at the time damages were sustained.

Star Photo Finishing Company brought this action in Fulton Superior Court against Joe Baldwin, the owner of a building, Sam N. Hodges, Jr., the builder, Sam N. Hodges, Jr. & Company, a successor corporation, and Carver Hunt, the designer, seeking recovery for losses caused by the collapse of the roof of the building, which plaintiff occupied as a tenant.

The amended petition, which eliminated the corporate defendant, shows in substance the following: In 1957 Hodges agreed to construct the building for Baldwin, using a novel roof design furnished by Hunt, on Baldwin's property fronting on Howell Mill Road a Atlanta. The roof design was one being used at the time of the agreement for the first time in the construction of another building at 1500 Southland Circle, N.W., in Atlanta. In 1961 a portion of the roof of the building on Southland Circle fell, but Hodges and Hunt failed to notify Baldwin that the roof of the same design on his building might be in danger of collapsing. In 1963 Star Photo leased a unit of the building from Baldwin for a term beginning on October 15, 1963, and agreed further that Star Photo could enter the unit in advance of this date to prepare it for use as a retail store. On September 28, 1963, after Star Photo had so occupied the unit, the concrete roof collapsed without warning, causing extensive damage to plaintiff's stock and fixtures and other losses. The allegations of negligence includes specific acts attributed to Hunt in the design of the roof. The petition also alleges that even if the building had been constructed in strict accordance with the plans and specifications, it would, by reason of defects in the design thereof, have been inherently and intrinsically dangerous to persons occupying the building and to property placed therein although it would have appeared when so constructed to be safe.

The trial judge overruled Hunt's general and special demurrers to the petition, and Hunt appeals to this court on the overruling of the general demurrers. The issues raised on appeal are whether the petition states a cause of action against Hunt, and if so, whether such cause is barred by the statute of limitation.

Robert L. Fine, Decatur, for appellant.

Paul H. Anderson, Clarence H. Calhoun, Jr., Atlanta, for appellee.

JORDAN, Judge.

1. Defendant Hunt, as sole appellant, insists that in general in Georgia neither an engineer nor an architect is liable as a matter of law to third persons who are not parties to the contract between such an engineer or architect and the owner of a building for faulty workmanship or negligence after acceptance of the building by the owner. He relies upon the rule as stated in the headnote of Young v. Smith & Kelly Co., 124 Ga. 475, 52 S.E. 765, as follows: '(A)n independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury result from the contractor's failure to properly carry out his contract.' The opinion in that case, however, goes further and points out 'some modifications of this rule. Among them are cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons.' Young, etc., supra, p. 476, 52 S.E. p. 765.

Consideration of other cases cited and relied upon by appellant reveal situations involving recognition or application of the general rule or recognized exceptions, or principles particularly applicable to vendorvendee relationships. Richards v. O'Brien Brothers, 1 Ga.App. 107, 57 S.E. 907, involved an issue of fact as to whether the contractor had completed the work and surrendered control to the owner under circumstances which would relieve the contractor from liability to an employee of the owner at work on the premises. This court in that case recognized the general rule. Lane v. Murray Company, 63 Ga.App. 844, 12 S.E.2d 492, was an action to recover for injuries caused by a gin which defendant had installed for plaintiff's employer. This court, in sustaining the dismissal of the petition, pointed out that although the petition disclosed that the injury occurred after the gin was installed and accepted by the owner, it failed to show that the gin as installed was a nuisance per se or so defective as to be imminently dangerous to third persons. In Higgins v. Otis Elevator Company, 69 Ga.App. 584, 26 S.E.2d 380, this court recognized the general rule and the exception as to work which is inherently or intrinsically dangerous or so negligently defective as to be imminently dangerous to third persons. In considering whether the petition contained enough to amend by, this court refused to absolve an independent contractor of liability to a third party, particularly under circumstances indicating that the contractor had a continuing duty of inspecting the elevator mechanism which may have exploded and caused plaintiff's injuries. In Queen v. Craven, 95 Ga.App. 178, 97 S.E.2d 523, where a tenant sought recovery from a contractor who had removed a back porch for the owner of a dwelling, for injuries sustained when he walked out the back door and fell, this court recognized and refused to apply any exception in the absence of allegations disclosing that the removal...