Rich v. City of Mobile
| Court | Supreme Court of Alabama |
| Writing for the Court | JONES; TORBERT |
| Citation | 410 So.2d 385 |
| Decision Date | 05 February 1982 |
| Parties | David R. RICH and Vivian M. Rich v. CITY OF MOBILE, A Municipal Corporation, et al. 80-455. |
Page 385
v.
CITY OF MOBILE, A Municipal Corporation, et al.
Michael S. McGlothren and Richard Bounds of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellants.
Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellees.
Drayton N. Hamilton, Montgomery, for amicus curiae Alabama League of Municipalities.
JONES, Justice.
This appeal is from an order granting Defendant City's motion to dismiss for failure to state a claim upon which relief could be granted.
Plaintiffs' residence was connected to and served by the sewer and water systems of the City of Mobile. The elevation of the residence was lower than that of the sewer system; and, because an overflow trap had not been installed in the line leading to the residence, a sewer line back-up overflowed into Plaintiffs' home.
Plaintiffs' claim against the City was based upon the City's alleged negligent failure to inspect or negligent inspection of the lines and the connection between Plaintiffs' residence and the main system. Plaintiffs claim that the duty required of the City's plumbing inspectors-to insure that proper materials are used in residential plumbing lines and connections, that no leaks exist, and that the lines and connections are installed according to the standard plumbing code-was breached when the inspectors: 1) during three preliminary inspections failed to discover the defect of the lack of an overflow trap; and 2) failed to make a final inspection of the lines and connections.
Stated simply, Plaintiffs would have this Court hold: 1) the duty imposed upon the City plumbing inspectors is one which is owed, not to the public generally (as is the case of a public official), but to individual homeowners; and, 2) the breach of such duty will support the homeowner's action for resultant damages. This we cannot do; we affirm the judgment.
Page 386
Because this is an issue of first impression in Alabama, a summary of the treatment of this area of law in other jurisdictions is appropriate.
The question whether to impose liability upon the municipality for the damages resulting from its agent's negligent inspection, or negligent failure to inspect, has given rise to two distinct lines of decisions. While reaching contrary conclusions, appellate courts of our sister states faced with this issue follow similar paths of reasoning in that all focus upon the nature of the duty of the inspector.
Typical of those cases recognizing the legal duty, and thus imposing liability, upon the city in appropriate cases, is the case of Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). There, the Wisconsin Court stated:
"... A building inspector must be held to have foreseen that his alleged negligence in performing the required inspection might have foreseeably resulted in harm to someone. Furthermore, under the rule of law stated in Restatement, 2 Torts 2d, p. 142, sec. 324A, ... the building inspector, once he did undertake to inspect the building had a duty to exercise reasonable care in so doing. That duty flowed to the plaintiffs herein.
"The 'public duty'-'special duty' distinction espoused in the cases cited by the City of Milwaukee and LeGrand set up just the type of artificial distinction between 'proprietary' and 'governmental' functions which this court sought to dispose of in Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962). Any duty owed to the public generally is a duty owed to individual members of the public." Coffey, 247 N.W.2d at 139.
For other cases reaching similar results, see Adams v. State, 555 P.2d 235 (Alaska 1976); and Campbell v. City of Bellevue, 85 Wash.2d 1, 530 P.2d 234 (1975).
On the other side of this "duty" issue is Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972), in which the Minnesota Court reasoned:
"The purpose of a building code is to protect the public. This is well stated in 7 McQuillen, Municipal Corporations (3 ed.) § 24.507, p. 523:
'... The enactment and enforcement of building codes and ordinances constitute a governmental function. The primary purpose of such codes and ordinances is to secure to the municipality as a whole the...
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Davenport v. Neely, No. CIV. A. 97-D-1019-N.
...214 Ala. 522, 108 So. 539, 540-41 (1926); see also City of Mobile v. Sullivan, 667 So.2d 122, 126-27 (1995); Rich v. City of Mobile, 410 So.2d 385 Turning to the City of Montgomery (8), and its Fire Department (9), Defendants have not established that the Fire Department is a separate legal......
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Benson v. Kutsch, No. 18223
...of the public without thereby exposing the taxpayers to liability for omissions in its attempts to enforce them. Rich v. City of Mobile, 410 So.2d 385 (Ala.1982); Grogan v. Commonwealth, 577 S.W.2d 4 (Ky.), cert. denied, 444 U.S. 835, 100 S.Ct. 69, 62 L.Ed.2d 46 (1979); O'Connor v. City of ......
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Trianon Park Condominium Ass'n, Inc. v. City of Hialeah, No. 63115
...our attention to the fact that thirteen states have held that no liability may arise from building inspections. Rich v. City of Mobile, 410 So.2d 385 (Ala.1982); Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973); Stigler v. City of Chicago, 48 Ill.2d 20, 268 N.E.2d 26 (1971); G......
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Hardy v. Town of Hayneville, No. Civ.A. 99-A-86-N.
...claims supporting such liability are based on negligence of a municipal agent, officer or employee. See, e.g., Rich v. City of Mobile, 410 So.2d 385, 387 (Ala.1982) ("A municipality ... is generally chargeable with the negligence of its employees acting within the line and scope of their em......
-
Davenport v. Neely, No. CIV. A. 97-D-1019-N.
...214 Ala. 522, 108 So. 539, 540-41 (1926); see also City of Mobile v. Sullivan, 667 So.2d 122, 126-27 (1995); Rich v. City of Mobile, 410 So.2d 385 Turning to the City of Montgomery (8), and its Fire Department (9), Defendants have not established that the Fire Department is a separate legal......
-
Benson v. Kutsch, No. 18223
...of the public without thereby exposing the taxpayers to liability for omissions in its attempts to enforce them. Rich v. City of Mobile, 410 So.2d 385 (Ala.1982); Grogan v. Commonwealth, 577 S.W.2d 4 (Ky.), cert. denied, 444 U.S. 835, 100 S.Ct. 69, 62 L.Ed.2d 46 (1979); O'Connor v. City of ......
-
Trianon Park Condominium Ass'n, Inc. v. City of Hialeah, No. 63115
...our attention to the fact that thirteen states have held that no liability may arise from building inspections. Rich v. City of Mobile, 410 So.2d 385 (Ala.1982); Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973); Stigler v. City of Chicago, 48 Ill.2d 20, 268 N.E.2d 26 (1971); G......
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Hardy v. Town of Hayneville, No. Civ.A. 99-A-86-N.
...claims supporting such liability are based on negligence of a municipal agent, officer or employee. See, e.g., Rich v. City of Mobile, 410 So.2d 385, 387 (Ala.1982) ("A municipality ... is generally chargeable with the negligence of its employees acting within the line and scope of their em......