Libbey v. Hampton Water Works Co., Inc.

• Decision Date: 18 July 1978
• Docket Number: No. 7882,7882
• Citation: 118 N.H. 500,389 A.2d 434
• Parties: Clinton B. LIBBEY et al. v. HAMPTON WATER WORKS COMPANY, INC.
• Court: New Hampshire Supreme Court

Page 434

389 A.2d 434

118 N.H. 500

Clinton B. LIBBEY et al. v. HAMPTON WATER WORKS COMPANY, INC.

No. 7882.

Supreme Court of New Hampshire.

July 18, 1978.

William J. Hurley, Portsmouth, by brief and orally, for plaintiffs.

Sulloway, Hollis, Godfrey & Soden, Concord (Fred L. Potter, Concord, by brief and orally), for defendant.

CANN, Justice (By special assignment pursuant to RSA 490:3.)

This is an action to recover damages for real and personal property lost when the plaintiffs' home was completely destroyed by fire. The plaintiffs claim that the defendant's failure to provide sufficient water pressure to extinguish the fire resulted in the loss. The defendant moved to dismiss both the contract and negligence counts for failure to state a cause of action. Perkins, J. transferred the questions of law without ruling.

Plaintiffs' claims in contract present no difficult problem. Specifically the plaintiffs allege that they were parties to an agreement that required the defendant to furnish "a supply of water to be used for domestic purposes at the plaintiffs' residence." The plaintiffs do not allege that the agreement required the defendant to provide water in fire hydrants. In the application for service, a copy of which is included in the record, water for fire-fighting purposes is not mentioned. Thus plaintiffs' claim states no cause of action in contract and should be dismissed.

The negligence count presents a more difficult question. This court has never considered whether the customer of a water company has an action in tort when the company's failure to provide sufficient pressure for fire fighting contributes to a fire loss. This question, however, has been widely considered in other jurisdictions. In the leading case H. R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 (1928), Justice Cardozo, for the court, refused to impose liability because the plaintiff in that case fell outside the "zone of duty." Justice Cardozo's opinion represents the overwhelming weight of authority. See W. Prosser, Handbook of the Law of Torts § 93, at 626 (4th ed. 1971); 78 Am.Jur.2d Water Works and Water Companies § 51 (1975); Annot., 62 A.L.R. 1205, 1221 (1929). Only four jurisdictions impose liability on a water company. W. Prosser, Supra § 93, at 626. The principal case imposing liability is Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 199 A.2d 875 (1964). That holding occasioned a strong dissent, which accused the majority of finding " 'proof of negligence in the air . . . .' " Id., at 228, 199 A.2d at 889 (Jones, J., dissenting), Quoting Palsgraf v. Long Island R. R., 248 N.Y. 339, 341, 162 N.E. 99 (1928).

The debate over whether a water company will be liable for failing to provide adequate pressure to extinguish a fire revolves around the question of "duty." Duty, however, is an exceedingly artificial concept. If a court wishes to impose liability, it can easily find the necessary "relationship" between the parties to create the "duty." The question whether there is a "duty" merely begs the more fundamental question whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. " Prosser, Supra § 53 at 325. The decision to impose liability reflects a judicial determination that "the social importance of protecting the (plaintiff's interest) outweighs the importance of immunizing the defendant from extended liability. " Note, The Child's Right to Sue for Loss of a Parent's Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L. Rev. 722, 740 (1976).

Thus rejecting the seductive call of "duty," we consider whether the plaintiff has an interest here that should be protected. The plaintiff's interest in his home and personal property is far more than de minimis. That homes will catch fire is foreseeable. Further it is clearly foreseeable that when the defendant laid pipe for fire hydrants and provided water for the hydrants, a homeowner in an area with hydrants would rely on that water to extinguish a fire in his...