Rose v. Sapulpa Rural Water Co.

• Decision Date: 14 July 1981
• Docket Number: No. 53661,53661
• Citation: 1981 OK 85,631 P.2d 752
• Parties: George E. ROSE and Fern Rose, Husband and Wife, Appellants, v. SAPULPA RURAL WATER COMPANY, an Oklahoma Corporation, Appellee.
• Court: Oklahoma Supreme Court

Page 752

631 P.2d 752

1981 OK 85

George E. ROSE and Fern Rose, Husband and Wife, Appellants, v. SAPULPA RURAL WATER COMPANY, an Oklahoma Corporation, Appellee.

No. 53661.

Supreme Court of Oklahoma.

July 14, 1981.

Appeal from the District Court, of Tulsa County; Patricia M. Hoebel, Trial Judge.

This is an action for damages for a fire loss sustained by the plaintiffs (plaintiffs below) to their buildings and personal property contained therein against the defendant, a nonprofit Oklahoma corporation organized to acquire water and to construct, operate and maintain such other facilities as may be necessary to supply water for domestic uses. Plaintiffs who were water customers and users of defendant's facilities allege that the fire loss was caused by defendant's failure to inspect and maintain a fire hydrant owned by defendant and situated near plaintiffs' property, it being the contention of plaintiffs that regular inspection by defendant would have disclosed a latent break within the fire hydrant which rendered it inoperable, by reason of which firefighting units called to the fire were delayed and hindered in the fighting of the fire so that plaintiffs' property was destroyed in the fire. A motion for summary judgment filed under Rule 13, Rules for the District Courts of Oklahoma was sustained by the District Court of Tulsa County. Plaintiffs appeal. Judgment of the trial court affirmed.

JUDGMENT AFFIRMED.

John P. McCormick, Jr., Pray, Walker, Jackman, Williamson & Marlar, Tulsa, for appellants.

Rodney A. Edwards, Jones, Givens, Gotcher, Doyle & Bogan, Inc., Tulsa, for appellee.

LAVENDER, Justice:

The issue presented here is whether the depositions, admissions, answers to interrogatories, and affidavits on file show that there is no substantial controversy as to any material fact in this case and, if such is the case, whether defendant is thereby entitled to judgment as a matter of law. ¹

On appellate review, all inferences and conclusions to be drawn from the underlying facts contained in the record should be viewed in the light most favorable to the party opposing the motion for summary judgment. ²

The uncontroverted facts in the record before us, insofar as they are pertinent, are as follows:

Defendant Sapulpa Rural Water Company is a non-profit corporation that was formed for the purpose of supplying potable water to rural areas surrounding the City of Sapulpa, Oklahoma, having been originally financed through Farmers Home Administration. "Memberships" within defendant corporation are in two categories. The first are water users who purchased "benefit units" at an initial cost of $150, the equivalent of a water tap fee. Owners of "benefit units" are the only members with voting rights in the corporation. In the second category are user-customers who by paying a prescribed tap fee are entitled to hook onto defendant's water main and to purchase water at regular customer rates. Either a benefit owner or a tap user may at his option have a fire hydrant installed at defendant's main line near the customer's property by paying to defendant the sum of $185 for six to eight inch lines, or the sum of $168 for four inch and smaller lines. Such fire hydrant is and remains the property of defendant and defendant has exclusive control over the cut-off valve between the hydrant and the defendant's water main.

The former owners of plaintiff's land were owners of a benefit unit and had paid defendant $168, thereby obtaining a fire hydrant for a four to six inch water line in front of their premises. While the larger hydrant on a six inch or larger line might be capable of direct fire fighting from a hose hook-up to the hydrant, the smaller hydrant was capable of and intended only for the purpose of filling a water truck.

Plaintiffs purchased the land from the former owners and by paying the water tap fee became user-customers of defendant. Plaintiffs did not become owners of a benefit unit in defendant and were not advised of the limited capabilities of the smaller hydrant procured by their predecessors in title.

No regular inspections or testing of fire hydrants were made by the defendant to determine whether fire hydrants were operable. If a customer user complained of low water pressure or reported a break in a water line, or if the representative of defendant who was engaged by defendant to maintain the system became aware of a defect in the system through his irregular travels near the water system, repairs were made.

On June 4, 1977, a fire occurred at plaintiffs' premises. When fire fighting units arrived, it was discovered that the fire hydrant in question was inoperative, hampering and delaying efforts to extinguish the fire, resulting in the loss of plaintiffs' buildings and contents.

Plaintiffs contend that defendant had a duty to inspect and to maintain the hydrant, and, had it performed that duty, the fire hydrant would have functioned properly, thereby minimizing plaintiffs' loss.

Defendant contends that it did not carelessly or negligently allow the hydrant to become inoperative, and further contends that it had no duty to inspect or maintain it.

We first consider the issue of whether the defendant had a duty to inspect and maintain the fire hydrant, because if no such duty existed, failure to perform it is not actionable.

In the early Oklahoma case of Lutz v. Talequah Water Co., 29 Okl. 171, 118 P. 128 (1911) this Court had before it a case in which the facts and the issue are quite similar to those here. There the Talequah Water Company owned a franchise to install a water system for the town of Talequah, and as a part of its franchise it was required to supply the town with water to extinguish fires. The franchise ordinance required the water company to provide for the use of the town a reservoir or standpipe for domestic and manufacturing supplies, "and direct hydrant pressure for extinguishing fires, * * *." Suit was brought by a private citizen, alleging that the water company had failed to furnish the supply of water it had contracted for, and by reason of such failure and as a proximate result thereof, plaintiff sustained damage by reason of a fire loss. In Lutz, the Court observed that there was no contract existing between the private citizen plaintiff and the water company, and held that there being a lack of privity, the plaintiff was precluded from suing either for breach of contract, or for the breach of duty growing out of the contract. ³ Were we living in the days of Lutz, it would be a simple matter to apply the doctrine of stare decisis and hold the absence of privity to be determinative. However, the metamorphose of the law as to whether privity is essential to recovery requires us to take a more expanded view of whether a duty was imposed on the defendant here, and whether its breach gives rise to a cause of action where privity does not exist.

Since the plaintiff in the case before us had no contract with the defendant expressly requiring the defendant to install, inspect or maintain a fire hydrant at or near the plaintiffs' premises, lack of privity precludes recovery on express contract on the part of the plaintiff. Lutz v. Talequah Water Co., supra.

While we note that under the terms of the Rural Water, Sewer, Gas and Solid Waste Management Districts Act (Laws 1972, c. 254, § 1, as amended by Laws 1975, c. 170, § 1 et seq.) § 1324.10 A 16 there is enumerated among the powers invested in corporations such as the defendant the power to enter into contracts for fire protection and "to construct, enlarge, extend or otherwise improve community facilities providing essential services to rural residents, including, but not limited to, fire protection, * * *," the power to contract for fire protection or to construct or improve community facilities essential to rural residents for fire protection does not impose a duty upon the defendant to do so. The only contract existent between plaintiff and defendant was one where defendant agreed to sell water to plaintiff at defendant's water tap upon defendant's trunk line, in exchange for which the plaintiff agreed to pay the regular established user customer rate.

Nor can a right to recover for breach of contract under the facts of this case arise by implication. ⁴

Having determined that the plaintiffs have no right of recovery for breach of contract, we turn to the question of whether under the facts of this case the plaintiffs may recover in tort.

The threshold question in any suit based on negligence is whether defendant had a duty to the particular plaintiff alleged to have been harmed. ⁵ Specifically, the issue here is whether the fact that the defendant having for whatever reason...