Island Shores Estates Condominium Ass'n v. City of Concord

• Decision Date: 04 November 1992
• Docket Number: No. 90-417,90-417
• Citation: Island Shores Estates Condominium Ass'n v. City of Concord, 615 A.2d 629, 136 N.H. 300 (N.H. 1992)
• Parties: , 24 A.L.R.5th 845 ISLAND SHORES ESTATES CONDOMINIUM ASSOCIATION v. CITY OF CONCORD.
• Court: New Hampshire Supreme Court

Page 629

615 A.2d 629

136 N.H. 300, 24 A.L.R.5th 845

ISLAND SHORES ESTATES CONDOMINIUM ASSOCIATION v.CITY OF CONCORD.

No. 90-417.

Supreme Court of New Hampshire.

Nov. 4, 1992.

Hibbard & Spinella, P.A., Concord (Frank P. Spinella, Jr. on the brief and orally), for plaintiff.

Cleveland, Waters and Bass, P.A., Concord (Thomas F. Kehr, on the brief and orally and Craig L. Staples on the brief), for defendant.

HORTON, Justice.

This appeal results from an order of the Superior Court(Morrill, J.), dismissing the plaintiff's tort action, and asks whether a cause of action exists against a municipality for negligent performance of a building inspection.We find that the injuries alleged by the plaintiff are not of the type against which the City of Concord had a duty to protect and, therefore, affirm.

The plaintiff, Island Shores Estates Condominium Association(Association), is an association of owners of 269 condominium units constructed in 1985 and 1986 in Penacook.The Concord Code Enforcement Department inspected these units and issued certificates of occupancy in 1986 and 1987.The developer of these units is now bankrupt, and the unit owners filed this action against the City of Concord(city) alleging that the inspection did not meet the 1981 Building Official's and Code Administrator's International Building Code requirements.The plaintiff alleges that its units now suffer from a litany of flaws, including inadequate structural framing of exterior decks, inadequate fire walls construction, inadequate installation of the heating systems, inadequate roof ventilation, inadequate site drainage, inadequate insulation of plumbing lines, and improper structural soundness.According to the plaintiff's writ, the failure to detect these problems constitutes gross negligence and "the construction approved by defendant threatens the structural integrity of the units and the health and safety of its occupants; that resultant harm to the owners of the units has occurred."The city argues that it owed the plaintiff no actionable duty under the public duty rule, as set out in Hartman v. Town of Hooksett, 125 N.H. 34, 480 A.2d 12(1984).

Because this case arises from a motion to dismiss, we take as true the facts alleged and decide whether they constitute a basis for legal relief.City of Berlin v. State, 124 N.H. 627, 630, 474 A.2d 1025, 1027(1984).This court, in reviewing the trial court's order of dismissal, must determine whether the plaintiff's writ contains facts that are sufficient to constitute a cause of action.Jay Edwards, Inc. v. Baker, 130 N.H. 41, 44, 534 A.2d 706, 708(1987).This determination requires the court to assume the truth of the plaintiff's well pleaded allegations of fact and to construe all reasonable inferences from them most favorably to the plaintiff.Collectramatic, Inc. v. Kentucky Fried Chicken Corp., 127 N.H. 318, 320, 499 A.2d 999, 1000(1985).

The plaintiff's writ contains five counts.The first count alleges that the defendant's inspection of the plaintiff's condominium units was negligently performed.All remaining counts incorporate the allegations of the first count by reference.Reduced to its essence, the writ states two theories under which the defendant had a duty to protect the plaintiff from injury.The first theory alleges a common law duty, and the second is based on the dictates of the Concord building ordinance.

In arguing the issue of duty, both parties have focused on the public duty rule.As developed, the public duty rule represents a limitation on liability for municipal acts that are carried out for the general welfare.In cases where by statute or ordinance a public official has a general duty to perform a function for the public's benefit, it has been held that liability will not be imposed for the negligent performance of this duty, unless the plaintiff can establish an individual duty owed him.SeeMiller v. State, 62 N.Y.2d 506, 510, 467 N.E.2d 493, 495, 478 N.Y.S.2d 829, 831(1984);Campbell v. State, 259 Ind. 55, 63, 284 N.E.2d 733, 737(1972).In Hartman v. Town of Hooksett, we held that the Hooksett police were conservators of the peace and as such assumed no duty to the general public or plaintiff to warn travelers about defects in a State highway.Hartman, 125 N.H. at 37, 480 A.2d at 14.In the absence of a special relationship between the municipality and the plaintiff, resulting in the creation of a duty to use due care for the benefit of particular persons or classes of persons, no actionable duty would flow to the plaintiff.Id.We did state that such liability may be appropriate when the defendant voluntarily undertakes a specific duty for a special class of persons, inducing justifiable reliance on that service.Id. at 36-37, 480 A.2d at 13.

The plaintiff asks that we reject the public duty rule under the alternative grounds that: (1) the public duty rule no longer applies to claims of gross negligence or recklessness after our decision in City of Dover v. Imperial Cas. & Indemn. Co., 133 N.H. 109, 575 A.2d 1280(1990);(2) the public duty rule was waived pursuant to RSA 412:3 by virtue of the city's participation in the New Hampshire Municipal Association Property Liability Insurance Trust's pooled risk management program; or (3)this case is an exception to the public duty rule in that the city voluntarily undertook the duty to inspect new construction.The defendant contends that no cause of action exists by virtue of the public duty doctrine.The public duty debate is an interesting one, but a duty must exist before we reach the question of whether it is a public duty or a private duty.We do not reach any issues involving the public duty rule because we find the defendant had no duty to protect the plaintiff.

The concept of duty is a legal one, and asks " 'whether the plaintiff's interests are entitled to legal protection against the defendant's conduct.' "Libbey v. Hampton Water Works Co., Inc., 118 N.H. 500, 502, 389 A.2d 434, 435(1978)(quotingW. Prosser, Handbook of the Law of Torts§ 53, at 325 (4th ed. 1971)).The concepts of duty and legal causation are closely related and must be considered together.SeeW. Keeton, Prosser and Keeton on the Law of Torts§ 42, at 274 (5th ed. 1984);McLaughlin v. Sullivan, 123 N.H. 335, 341-42, 461 A.2d 123, 127(1983).As Professors Prosser and Keeton point out "It is quite possible to state every question which arises in connection with [legal causation as]: was the defendant under a duty to protect the plaintiff against the event which did in fact occur?... The question whether there is a duty has most often seemed helpful in cases where the only issue is in reality whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiff's benefit.Or, reverting again to the starting point, whether the interests of the plaintiff are entitled to legal protection at the defendant's hands against the invasion which has in fact occurred."

W. Keeton, supra§ 42, at 274.The term "duty" serves to focus attention on the policy issues determining the scope of the relationship between the parties, while legal causation focuses on the mechanical sequence of events that comprises causation in fact.It should be kept in mind, however, that a discussion of the concepts of duty and legal causation is often rooted in the same question.Id.The resolution of the question of either duty or legal causality ultimately depends upon a consideration of the competing policy reasons for and against the recognition of a duty.Id.

We start with the plaintiff's common law theory of duty, examining count one of the writ.Preliminarily we note that the plaintiff's allegations of injury lack specificity.We cannot tell if the injuries are physical, financial, or otherwise.Further the plaintiff failed to show the causal connection between the defendant's alleged failure to detect the inadequate workmanship of a third party and the plaintiff's injury.

If the pleadings are construed very liberally we can infer that the plaintiff's injury is financial.As best we can determine from the pleadings, the injury was caused by the poor structural integrity of the units.However, the poor structural integrity was not caused by the inspection, but by the construction itself, and the threat of the substandard construction would exist in spite of the inspection.To support a causal link between the city's actions and any damages suffered, the plaintiff needs to allege some additional act tying the city's inspection to the damages.SeeDiPerri v. Tothill, 129 N.H. 676, 680, 531 A.2d 342, 345(1987).The plaintiff failed to plead facts demonstrating a legal causation between the city's approval of the construction and any injuries the plaintiff might allege.Rather, the plaintiff made bare legal conclusions that causation existed.It is well settled that a court"need not accept statements in the complaint which are merely conclusions of law."Jay Edwards, Inc. v. Baker, 130 N.H. 41, 45, 534 A.2d 706, 708(1987)(citations omitted).The plaintiff failed to make a prima facie case.

On appeal, the plaintiff supplied the missing causal element.The plaintiff claimed the legal causation between the city's alleged negligent approval of the construction and the plaintiff's injury was the plaintiff's justifiable reliance upon the city's certificate of occupancy.Assuming, arguendo, the trial judge could infer the missing element, and further, had inferred the existence of injuries, then the plaintiff's writ would still have failed to state a cause of action because the defendant owed no duty, general or special, to the plaintiff.We believe the plaintiff attempted to plead a case of negligent misrepresentation.It desired to show that the city negligently determined that its condominiums were in conformance with the building code and that its members...