McDonough v. Whalen

• Decision Date: 24 June 1974
• Citation: 313 N.E.2d 435,365 Mass. 506
• Parties: Robert E. McDONOUGH, Jr., et al. v. William T. WHALEN (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 435

313 N.E.2d 435

365 Mass. 506

Robert E. McDONOUGH, Jr., et al. v. William T. WHALEN (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Bristol.

Argued April 4, 1974.

Decided June 24, 1974.

Donald J. Fleming, Mattapoisett, for plaintiffs.

Jarvis Hunt, Boston, for defendant Whalen.

Stephen D. Clapp, North Attleboro (Henry G. Barrett, and David G. Toone, Attleboro, with him), for defendant DesVergnes.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

QUIRICO, Justice.

The plaintiffs Robert E. McDonough, Jr., and Suellen McDonough brought these actions of tort against the defendants William T. Whalen (Whalen) and Roger G. DesVergnes (DesVergnes) to recover for personal injuries and property damage allegedly caused by the defendants' negligent design and installation of a sewerage or septic system for the plaintiffs' house.

The facts may be summarized. The plaintiffs are a married couple with three young children. In November, 1966, they purchased a house at 107 Stanson Drive, North Attleboro, from Fred's Realty Co., Inc., the builder, for $22,500 plus expenses. The plaintiffs took occupancy in September, 1966, before the house was finished, but the house was completed at the time title passed in November. Since there was no town sewerage, the house had a private septic system.

Whalen had designed the septic system for the builder, using a form of design he had prepared for the North Attleboro board of health. He had also performed the required percolation test on the house lot before the septic system was installed. He was paid by the builder for both these services. Whalen, in his capacity as agent of the North Attleboro board of health, inspected the septic system once it was installed and certified that its installation was done in accordance with the board's construction permit. DesVergnes actually installed the system for the builder in May, 1966.

In the spring of 1967, about six months after the plaintiffs moved in, their lot surrounding the house became flooded with water, and they detected the odor of sewage; sewage was found to be flowing over their land from the septic system's leaching field. The plaintiffs complained to the builder and to the board of health. Whalen, again in his capacity as the board's agent, came to inspect the premises in June, 1967. He advised the plaintiffs to curtail their use of water. The plaintiffs did so in several respects, and they did not permit their three children to play in the yard because of the problem with the septic system.

At some time the builder constructed a drainage area in the rear of the lot. While this alleviated the drainage problem, it did not help the sewerage problem. In February, 1968, the plaintiffs engaged an engineer to devise a solution to the sewerage problem. Thereafter, they commenced an action against the builder and the present actions against Whalen and DesVergnes. At some point before trial the builder repurchased the house from the plaintiffs, and their action against it was discontinued. The plaintiffs suffered a loss of about $1,000 in out-of-pocket expenses as a result of the transaction. ² After the house was repurchased by the builder the plaintiff Robert McDonough visited a doctor four or five times over a three or four month period beginning in June, 1968.

The plaintiffs' amended declaration against Whalen contains four counts: the first and second allege that Whalen negligently designed the septic system in question; the third alleges that Whalen as agent of the North Attleboro board of health negligently inspected and approved the plaintiffs' property for residential construction; the fourth alleges that in such capacity he also negligently issued a certificate of compliance for the septic system. In their first and third counts the plaintiffs sought recovery for property damage consisting of pecuniary loss and expense, loss of use, and depreciation in the property's value; in the second and fourth counts the plaintiff Robert McDonough sought recovery for 'great anguish of mind and embarrassment.' The plaintiffs' amended declaration against DesVergnes contained two counts, both alleging that he had negligently installed the sewerage system at their house. The first count sought recovery for the same elements of property damages as alleged in their action against Whalen; the second sought recovery for 'great mental anguish and embarrassment.'

The actions were consolidated and tried together. The jury returned verdicts for the plaintiffs against both defendants, awarding $1,000 on the counts alleging property damage and $4,000 to Robert McDonough on the counts alleging mental anguish. Thereafter, the cases went before the Appeals Court on Whalen's and DesVergnes's consolidated bill of exceptions, which included their exceptions to the denial of their motions for directed verdicts.

The Appeals Court sustained the defendants' exceptions and ordered judgments to be entered for the defendants on all counts. McDonough v. Whalen, --- Mass.App. ---, ---, ^a 304 N.E.2d 199 (1973). The case is presently before us on our allowance of the plaintiffs' application for further appellate review. G.L. c. 211A, § 11. S.J.C. Rule 3:24, § 7, Mass. (1972).

The Appeals Court's decision was based neither on a conclusion that the plaintiffs' proof of negligence on the part of either Whalen or DesVergnes was insufficient ³ nor on the arguments apparently asserted by the two defendants (and which they raise again before us here). Rather, the court held that the plaintiffs were not entitled to prevail because neither the plaintiff Robert McDonough's alleged mental anguish nor the plaintiffs' alleged property damage would qualify as the type of personal injury or physical property damage 'justifying the imposition of tort liability' on the defendants within the theoretical framework of the plaintiffs' actions. Id. at ---, and fn. 3, ^b 304 N.E.2d 199.

1. We consider birst the plaintiffs' property damage claim. The Appears Court's opinion makes clear that it considered the plaintiffs' actions as falling within the line of cases imposing liability in tort for negligently made products despite the for negligently made products despite the lack of privity, first adopted in Carter v. Yardley & Co. Ltd., 319 Mass. 92, 96--97, 104, 64 N.E.2d 693 (1946), and later applied to permit recovery for property damage in Brown v. Bigelow, 325 Mass. 4, 5--6, 88 N.E.2d 542 (1949). ⁴ We agree with the Appeals Court's analysis of these actions. However, for reasons discussed later in this opinion, we do not agree that under such an analysis the plaintiffs are precluded from recovering the property damages they claim.

Notwithstanding the existence of the Carter v. Yardley & Co. rule in Massachusetts and its counterpart in most other jurisdictions, it has traditionally been held that building contractors were not liable for injuries or property damage sustained by persons not in contractual relation with them after their work was completed and accepted by the owner or their employer. ⁵ In Cunningham v. T. A. Gillespie Co., 241 Mass. 280, 135 N.E. 105 (1922), this court applied such a rule of nonliability to an independent contractor who had completed and turned over the control of allegedly negligent construction work he had done on a city sidewalk before the plaintiff was injured. Id. at 282--283, 135 N.E. 105. However, as the Appeals Court notes, the Cunningham case was decided long before Carter v. Yardley & Co. Ltd., supra, and has been questioned in later cases. See Flaherty v. New York, N.H. & H.R.R. 337 Mass. 456, 459--462, 149 N.E.2d 670 (1958); Donahue v. Stephens, 342 Mass. 89, 93, 172 N.E.2d 101 (1961). But see Christman v. Shagoury Constr. Co. Inc., 349 Mass. 113, 114--115, 207 N.E.2d 57 (1965).

We believe that it is time to overrule expressly the rule stated in the Cunningham case. As numerous cases in other jurisdictions and many commentators have pointed out, ⁶ there is no sound reason to treat a builder of houses or other realty structures differently from a manufacturer of chattels. A house which is constructed in a negligent manner is just as likely to cause substantial harm to persons therein as are the many types of goods and services falling within the scope of the Carter v. Yardley & Co. rule. And the ordinary person buying such a house is in no better position to discover hidden dangers caused by the negligent construction than is the purchaser of a defective bottle of perfume, Carter v. Yardley & Co. Ltd., supra, or of an authomobile, MacPherson v. Buick Motor Co. 217 N.Y. 382, 111 N.E. 1050 (1916). There is no sound reason why he should be prevented from recovering for property damage or personal injury merely because he is not in privity with the builder or contractor responsible for such work. ⁷ .we therefore hold that a builder or contractor may be liable for injuries or damage caused by his negligence to persons with whom he has no contractual relation and even though his work is completed and accepted by the owner before the injuries or damage occurred. Liability will be imposed, however, only if it is foreseeable that the contractor's work, if negligently done, may cause damage to the property or injury to persons living on or using the premises. ⁸

Spencer v. Gabriel, 328 Mass. 1, 101 N.E.2d 369 (1951), and Donahue v. Stephens, 342 Mass. 89, 172 N.E.2d 101 (1961), cited by the Appeals Court, ⁹ as raising doubts about the status in Massachusetts of the rule stated above, are perhaps distinguishable from the case presently before us. In each of these cases, the plaintiff vendee of a house sued the defendant builder-vendor to recover for property damage caused by allegedly negligent construction. However, both actions purported to be framed as actions for deceit and misrepresentation with respect to the sales of the houses not as actions to recover for the negligent construction...