Luterbach v. Mochon, Schutte, Hackworthy, Juerisson, Inc.

• Decision Date: 30 June 1978
• Docket Number: No. 76-005,76-005
• Citation: 267 N.W.2d 13,84 Wis.2d 1
• Parties: Herbert F. LUTERBACH and Susan Luterbach, Appellants, v. MOCHON, SCHUTTE, HACKWORTHY, JUERISSON, INCORPORATED (formerly known as Schutte-Mochon, Inc.), Respondent, General Insurance Company of America, Defendant.
• Court: Wisconsin Supreme Court

Page 13

267 N.W.2d 13

84 Wis.2d 1

Herbert F. LUTERBACH and Susan Luterbach, Appellants, v. MOCHON, SCHUTTE, HACKWORTHY, JUERISSON, INCORPORATED (formerly known as Schutte-Mochon, Inc.), Respondent General Insurance Company of America, Defendant.

No. 76-005.

Supreme Court of Wisconsin.

Argued May 2, 1978.

Decided June 30, 1978.

Ronald L. Piette and Craig W. Nelson (argued), Milwaukee, on brief, for appellants.

Chester J. Niebler (argued) and Niebler & Niebler, Menomonee Falls, on brief, for respondent.

This is an appeal from a summary judgment dismissing the complaint of Herbert F. and Susan Luterbach against an architectural firm, Mochon, Schutte, Hackworthy, Juerisson, Inc., and its insurer, General Insurance Company of America. The complaint sought damages for injuries arising out of a construction site injury caused by improper construction procedures. The Luterbachs contend that the general supervisory powers of the architect gave rise to liability for this nondesign-related injury. The insurance company is not a party to this appeal.

BEILFUSS, Chief Justice.

On March 6, 1969, defendant-respondent Mochon, Schutte, Hackworthy, Juerisson, Inc. (formerly Schutte-Mochon, Inc., hereinafter designated the architect), entered into an agreement with the Board of Education, School District No. 1, City of West Allis (the owner), to perform architectural services in connection with the erection of an addition to West Allis Central High School. On April 23, 1971, the James Luterbach Construction Company, Inc. (the contractor), entered into an agreement with the owner to build the addition to West Allis Central.

Plaintiff-appellant Herbert F. Luterbach was employed as a carpenter for the contractor. On July 30, 1971, Luterbach was injured on the construction site when a cave-in occurred while working in an excavation approximately 24 feet deep. In a complaint filed against the architect, Luterbach alleged that the excavation was improperly shored and braced, and that his injuries were proximately caused by the negligence of the architect in, inter alia, failing to properly supervise the construction, failing to properly inspect the construction site, and failing to take steps to maintain the site in a safe manner. As a result of his injuries, Luterbach claimed $1,000,000 damages. His wife Susan Luterbach sought damages in the amount of $50,000 for loss of services, society, companionship and consortium.

The architect denied that its supervisory duties encompassed anything more than seeing that the completed structure met the contract terms. It also interposed several affirmative defenses. On August 29, 1975, the architect filed a motion for summary judgment and accompanying affidavits. The architect's insurer, also a defendant, filed a similar motion. The Luterbachs did not file any affidavits in opposition.

The trial court granted the motion, without an opinion, on December 23, 1975. On March 19, 1976, the complaint against the insurance company was dismissed upon stipulation. Judgment was entered dismissing the complaint against the architect on March 30, 1976. The Luterbachs appeal.

The major issues before us are whether this was a proper case for disposition by summary judgment and, if so, whether the trial court was warranted in dismissing the action.

It must be noted that we are dealing with two contracts: the owner-architect agreement and the owner-contractor agreement. The basis for the Luterbachs' case lies in language found in the owner-contractor agreement. Although the architect would not normally be bound by a contract to which it is not a party, the Luterbachs point out that the owner-architect contract provided that the architect would prepare certain provisions of the owner-contractor agreement and would generally assist the owner in drafting the contract forms. Furthermore, the owner-architect agreement makes reference to the owner-contractor agreement in defining certain of the architect's duties. Thus, under these circumstances, we should consider the owner-contractor agreement together with the owner-architect agreement in determining the architect's duties. ¹

We have many times stated that summary judgment is a drastic remedy which is proper only when there are no substantial issues of fact to be determined, when the evidence on a material fact is not in conflict, and when there are no permissible inferences from undisputed facts that would permit a different result. ² Generally the construction of words and clauses in a contract is a question of law. ³ However, the construction of an ambiguous contract can present a question of fact and, as such, summary judgment is usually not appropriate. ⁴ A contract is ambiguous ". . . (w)hen the language of a contract, considered as a whole, is reasonably or fairly susceptible to different constructions . . . ." Lemke, supra, 35 Wis.2d at 432, 151 N.W.2d at 19.

The basis for the Luterbachs' claim that the architect is liable for their injuries is Paragraph 36(a) of the owner-contractor agreement:

"ARCHITECT'S STATUS:

"(a) The Architect shall have general supervision and direction of the work. He is the agent of the Owner only to the extent provided in the contract documents and when in special instances he is authorized by the Owner so to act, and in such instances he shall, upon request, show the contract written authority. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the contract."

Taking the general duty of supervision, which includes the authority to stop the work "whenever such stoppage may be necessary to insure the proper execution of the contract," the Luterbachs point to several provisions in the owner-contractor agreement which mandate that the work shall comply with the construction safety standards of the Department of Industry, Labor and Human Relations. There are also provisions where in the contractor is specifically charged with taking the safety precautions necessary to protect the workers. Included in these provisions is an express statement that the contractor assumes the responsibility for the adequacy and safety of shoring and bracing. It is the appellants' position, however, that the architect is ultimately responsible for the accident because of his supervisory duty to see that the contract is carried out and his power to stop work if contrary to the contract provisions.

While it might be possible to find the owner-contractor agreement ambiguous, the general supervisory duties set forth therein are rendered unambiguous by the following language from the owner-architect agreement:

"4. c. The Architect will make periodic visits to the site to familiarize himself generally with the progress and quality of the work and to determine in general if work is proceeding in accordance with the Contract Documents.

"During such visits and on the basis of his observations while at the site, he will keep the Owner informed of the progress of the work, will endeavor to guard the Owner against defects and deficiencies in the work of contractors, and he will condemn work as failing to conform to the Contract Documents.

"The Architect shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work. . . ."

Viewing the contracts as a whole, we conclude that the Luterbachs' expansive definition of supervisory powers cannot be accepted. The contracts are not ambiguous. The architect had no duties in regard to insuring the safety of the construction site; these were the duties of the contractor. Summary judgment was properly granted dismissing the complaint. Our conclusion is further fortified by the fact the Luterbachs failed to challenge the motion for summary judgment by counter-affidavits in the trial court.

Aside from the fact that the contract documents clearly refute the Luterbachs' position, we note our disagreement with a line of cases from other jurisdictions which recognize an architect's liability for nondesign-related injuries based on a general duty to supervise construction, including the power to stop work to see that it conforms to the contract. ⁵ The signal case on architect's liability based on supervisory duties is Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630 (1967). Although that case may be distinguished because the contract did not so clearly preclude that an architect's responsibility for construction site injuries, we disapprove of efforts to parlay general duties of supervision into a duty to insure the safety of construction sites.

This position is consistent with earlier cases by this court. In Vonasek v. Hirsch and Stevens, Inc., 65 Wis.2d 1, 221 N.W.2d 815 (1974), the architect had a general supervisory power, including the power to stop the work should the construction fail to conform to the plans and specifications. The supervisory duty was limited, but not as limited as in the instant case. The court stated at p. 11, 221 N.W.2d...