Jackson v. City of Franklin

• Decision Date: 14 July 1988
• Docket Number: No. 10773,10773
• Citation: 51 Ohio App.3d 51,554 N.E.2d 932
• Court: Ohio Court of Appeals
• Parties: JACKSON, Admr., Appellant, v. CITY OF FRANKLIN; B.D. Morgan & Co., Appellee, et al.

Page 51

51 Ohio App.3d 51

554 N.E.2d 932

JACKSON, Admr., Appellant, v. CITY OF FRANKLIN; B.D. Morgan & Co., Appellee, et al.

No. 10773.

Court of Appeals of Ohio, Second District, Montgomery County.

July 14, 1988.

Syllabus by the Court

1. A construction contractor who merely follows the designs and specifications of another in the construction of a swimming pool may not be held liable in a negligence action for alleged defects in the design of the pool where the plans are not so obviously defective and dangerous that no reasonable person would follow them.

2. A construction contractor who merely follows the designs and specifications of another in the construction of a swimming pool may not be held strictly liable in tort for alleged defects in the design of the pool in the absence of evidence that the pool is mass-produced for sale to the public, i.e., that the pool is a "product."

Irving I. Saul, Coolidge, Wall, Womsley & Lombard Co., L.P.A., Terence L. Fague and Janice M. Paulus, Dayton, for appellant.

Freund, Freeze & Arnold and Neil F. Freund, Dayton, for appellee.

BROGAN, Judge.

The instant appeal results from the order of the Montgomery County Common Pleas Court granting summary judgment to the appellee.

The plaintiff-appellant, Joyce J. Jackson, as administratrix of the estate of her son, Jonathan Jackson, filed a wrongful death action against the defendant-appellee, B.D. Morgan & Company ("defendant") contending that defendant as a general contractor provided labor, material and equipment in the construction of the swimming pool owned and operated by the city of Franklin and Franklin Township as a recreational facility for the use of the public.

Also joined as a defendant was Midwestern Pool Company, who the plaintiff alleged contracted with the city and township to provide services for the design and positioning of the swimming pool and appurtenances, including the preparation of plans and specifications for such facility.

The plaintiff alleged that her son, Jonathan, on July 27, 1986, paid admission to the pool and while swimming underwater lost consciousness and remained submerged for ten or more minutes resulting in his death. Plaintiff alleged that her son was discovered at the bottom of the pool along the western edge of the deep area.

The defendant subsequently moved for summary judgment and attached the affidavit of Charles Morgan. Morgan stated he was the company president and that the company bid on and received the prime contract to furnish labor and material to complete the construction of a swimming pool development for the city of Franklin, Ohio.

He further stated that his company, with the assistance of subcontractors, built the pool and the appurtenances in accordance with the "Specifications for the Construction of a Swimming Pool Development at Franklin, Ohio, as established by Midwestern, Inc." Further, Morgan stated that his company did not design, position or prepare plans, drawings, specifications or directions, regarding the design of the swimming pool or any of the appurtenances thereto. Further, he stated his company did not design or choose the location of the lifeguard chairs at the Franklin Community Park swimming pool.

Morgan stated that his company never operated or controlled the swimming pool referred to in the complaint, and that his company fully performed its obligations as the general contractor in accord with the terms and specifications provided by Midwestern, Inc. Lastly, plaintiff alleged that the inordinately long delay in discovering her son in the pool was the proximate cause of his death and was caused by the negligent failure to construct and position lifeguard chairs so as to provide a clear, unobstructed view of the pool bottom as required by the Ohio Administrative Code.

In a second cause of action, the plaintiff alleged the defendant was strictly liable within the purview of R.C. 2125.01 and 2125.02 because the defendant's defective designing, positioning and constructing of the swimming pool and its appurtenances gave rise to an unreasonably dangerous condition because the positioning of the lifeguard chairs would allow a swimmer who became unconscious while underwater at the western edge of the deep area during the later afternoon on sunny days to be at risk to remain submerged and undiscovered for a long period of time due to the glare of the sun and the shadows of the diving boards on the water. Morgan stated his company was never made aware or given notice that the placement of the lifeguard chairs would be dangerous to users of the pool.

The plaintiff responded with a memorandum in opposition to the motion but provided no evidentiary material in opposition to the affidavit of defendant's chief officer.

In sustaining the defendant's motion for summary judgment on the plaintiff's negligence cause of action the trial court found that there was "no evidence submitted that the contract was performed in a negligent manner or differently from the design of the pool given to the City of Franklin by Midwest." The court also found that "no evidence has been submitted to show that any of the defendants had knowledge of anything that was likely to or could foreseeably cause injury or damage."

In granting summary judgment on plaintiff's strict liability cause of action, the trial court noted, "there is no allegation in the complaint that the general contractor or any of the subcontractors furnished anything except construction or installation and furnished labor and materials for that purpose."

In appellant's first assignment of error, she contends that the trial court erred in granting summary judgment for the defendant on the negligence claim because defendant's compliance with the contract's specifications does not constitute ordinary care as a matter of law.

In support of her assignment, appellant places reliance on 2 Restatement of the Law 2d, Torts (1965) 293, Section 385, which provides:

"One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others."

Initially, it was held that, while the contractor would be liable for any injury resulting from his negligence before his work was completed, his responsibility was terminated, and he was not liable to any third person once the structure was completed and accepted by the owner. Sumner v. Lambert (1953), 96 Ohio App. 53, 54 O.O. 173, 121 N.E.2d 189; Annotation (1958), 58 A.L.R.2d 865, 873.

The original justification for such a rule was the lack of privity between the contractor and the third party, but as the privity barrier was successfully assaulted, the grounds for nonliability were chiefly (1) there would be no end to a contractor's litigation with third persons if liability did not cease when the work contracted for was accepted, (2) the proximate cause of the injury to a third party was the owner's negligence in maintaining such real property, not the contractor's in constructing it, the chain of causation from the negligent act of the contractor being broken by the intervening responsible human agency of the owner, and (3) a wise and conservative public policy confines a contractor's liability for negligence in construction of a complicated structure to the owner or contractee. Annotation, supra, at 870.

The earliest exception to the general rule of nonliability was to hold the contractor liable for "something like fraud" if he turned the work over knowing it was dangerously defective. O'Brien v. American Bridge Co. of New Jersey (1910), 110 Minn. 364, 125 N.W. 1012. Other cases relied on the analogy of the seller of goods, and found a duty to use care where the product of the work could be regarded as "inherently" or "imminently" dangerous. Holland Furnace Co. v. Nauracaj (1938), 105 Ind.App. 574, 14 N.E.2d 339; Johnston v. Long (1943), 56 Cal.App.2d 834, 133 P.2d 409.

Where there was an interference with the rights of the public, or with the use and enjoyment of adjoining land, the contractor was held liable for creating a nuisance, and where his conduct could be found to go entirely beyond and outside the contract, the question was treated as one of ordinary negligence liability. Delaney v. Supreme Investment Co. (1947), 251 Wis. 374, 29 N.W.2d 754; Ackerman v. Ellis (1911), 81 N.J.L. 1, 79 A. 883; Littell v. Argus Production Co. (C.A. 10, 1935), 78 F.2d 955.

As in the case of the seller of chattels, the exceptions tended to gradually swallow up the prevailing rule until the analogy of MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050, was accepted.

It is now the almost universal rule that the contractor is liable to all those who may foreseeably be injured by the structure, not only when he fails to disclose dangerous conditions known to him, but also when the work is negligently done. Moran v. Pittsburgh-Des Moines Steel Co. (C.A. 3, 1948), 166 F.2d 908, certiorari denied (1948), 334 U.S. 846, 68 S.Ct. 1516, 92 L.Ed. 1770; Hunter v. Quality Homes, Inc. (1949), 45 Del. 100, 68 A.2d 620. This applies not only to contractors doing original work, but to supervising architects and engineers as well. Paxton v. Alameda Cty. (1953), 119 Cal.App.2d 393, 259 P.2d 934.

In Prosser & Keeton, Law of Torts (5 Ed.1984) 723-724, Section 104A, it is stated:

"One important limitation recognized in several cases is that the contractor is not liable if he has merely carried out carefully the plans, specifications and directions given him, since in that case the responsibility is assumed by the employer, at least where the plans are not so obviously defective and dangerous that no...