Seely v. Loyd H. Johnson Const. Co., Inc.

• Decision Date: 15 March 1996
• Docket Number: Nos. A95A1853,s. A95A1853
• Citation: Seely v. Loyd H. Johnson Const. Co., Inc., 470 S.E.2d 283, 220 Ga.App. 719 (Ga. App. 1996)
• Court: Georgia Court of Appeals
• Parties: SEELY et al. v. LOYD H. JOHNSON CONSTRUCTION COMPANY, INC. et al. LOYD H. JOHNSON CONSTRUCTION COMPANY, INC. v. R & R PLUMBING, INC. et al. POWERS v. R & R PLUMBING, INC. et al. through A95A1855.

Page 283

470 S.E.2d 283

220 Ga.App. 719

SEELY et al. v.LOYD H. JOHNSON CONSTRUCTION COMPANY, INC. et al.

LOYD H. JOHNSON CONSTRUCTION COMPANY, INC. v.R & R PLUMBING, INC. et al.

POWERS v.R & R PLUMBING, INC. et al.

Nos. A95A1853 through A95A1855.

Court of Appeals of Georgia.

March 15, 1996.

Barham, Dover, Bennett, Miller, Sherwood & Stone, John R. Bennett, Valdosta, for Seely et al.

Young, Thagard, Hoffman, Scott & Smith, H. Pearce Scott, Valdosta, for Loyd H. Johnson Construction Company, Inc. et al.

Elliott & Blackburn, W.G. Elliott, W. Gus Elliott II, Valdosta, for R & R Plumbing, Inc. et al.

Langdale, Vallotton & Linahan, Willie J. Linahan, Valdosta, for Powers.

ANDREWS, Judge.

Loyd H. Johnson Construction Company, Inc. and Powers (the builder-sellers) built and sold a new residence to the Seelys.Soon after moving into the residence, Mr. and Ms. Seely discovered water leaking from the bathroom wall.The Seelys notified the builder-sellers, who sent R & R Plumbing, Inc. to fix the leak.R & R Plumbing was the company to which the builder-sellers had subcontracted the plumbing work during the construction of the residence.Rykard, a licensed plumber for R & R Plumbing, found the leak was caused by a nail driven into the bathroom wall by Singletary, who was the carpenter subcontractor during the construction.The nail had gone through the wall and pierced a pipe inside the wall.Rykard repaired the pipe by removing the nail and soldering the hole.Several days after R & R Plumbing fixed the leak, the repair failed and water again leaked from the hole.This time the leak occurred sometime during the early morning hours after the Seelys had retired for the night.When Ms. Seely got up during the night to use the bathroom, she was injured when she stepped in the water and slipped and fell.

Ms. Seely and Mr. Seely, who claimed loss of consortium, sued the builder-sellers for property damage and personal injuries resulting from the leak, claiming negligent construction or repair, breach of contract, breach of warranty, and strict liability.The builder-sellers answered denying liability and filed third-party complaints against the plumbing subcontractor, R & R Plumbing, and the carpenter subcontractor, Singletary, claiming they were independent contractors who performed the allegedly negligent work which caused the leak, and that they were liable on the basis of contribution or indemnity for any liability imposed on the builder-sellers.

The builder-sellers moved for summary judgment on the Seelys' claims.The trial court granted summary judgment in favor of the builder-sellers as to all claims for personal injury and denied summary judgment as to any remaining claims for property damage.The Seelys appeal from this judgment in Case No. A95A1853.

R & R Plumbing and Singletary moved for summary judgment on the builder-sellers' third-party complaints.The trial court granted summary judgment in favor of R & R Plumbing as to all issues.As to Singletary, the trial court granted summary judgment as to any liability on personal injury or claims deriving therefrom and as to any remaining property damage incurred by the Seelys after R & R Plumbing first repaired the leak.The trial court denied summary judgment with respect to any remaining property damage claims which the Seelys may have incurred as a result of the leak before it was first repaired by R & R Plumbing.In Case Nos. A95A1854andA95A1855, the builder-sellers cross-appeal from these judgments.

Case No. A95A1853

1.The trial court erred by granting summary judgment in favor of the builder-sellers on the claims for negligent construction or repair.Because the breach of contract or warranty claims were based on the negligent construction or repair claim, summary judgment was also erroneously granted on these claims.

The builder-sellers claimed that the leak which caused the damages was entirely the fault of the independent contractors, R & R Plumbing and Singletary, over whose work the builder-sellers claim they exercised no direction and control.CompareOCGA § 51-2-5.This claim provided no basis for summary judgment in favor of the builder-sellers.The Seelys' claims against the builder-sellers alleging negligent construction or repair and breach of promises or warranties to build the residence in a fit and workmanlike manner are governed by the decisions in Holmes v. Worthey, 159 Ga.App. 262, 282 S.E.2d 919(1981), aff'd inWorthey v. Holmes, 249 Ga. 104, 287 S.E.2d 9(1982), in which the rule of caveat emptor was abandoned in cases involving latent defects in transactions between home buyers and builder-sellers of new homes."[A] builder expressly or impliedly promises that he has built the house in a fit and workmanlike manner.Thus, the law imposes upon the professional builder ... the obligation to exercise a reasonable degree of care, skill and ability, which certainly can be shown as that degree of care and skill which, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession."Williams v. Runion, 173 Ga.App. 54, 57, 325 S.E.2d 441(1984).After Holmes, supra, "promises made as to serviceability and fitness for the use intended [do] not merge with the warranty deed provided the purchaser [can] establish negligence in the construction, and further provided the purchaser was not reasonably aware of the deficiencies about which the builder knew or should have known because of his superior knowledge in the trade."Runion, supra at 56, 325 S.E.2d 441;Holmes, supra at 272, 282 S.E.2d 919.Accordingly, as to a claim based on negligent construction, since the builder-seller holds himself out as having the ability and expertise to build a fit and workmanlike residence, he cannot escape liability simply by claiming that an independent contractor he hired was wholly responsible for the negligent work.Hudgins v. Bacon, 171 Ga.App. 856, 862-863, 321 S.E.2d 359(1984).In these cases, we recognize a right and a duty for builder-sellers to direct and control the work of those employed by them to the extent that an ordinarily prudent builder would exercise such direction and control to build a fit and workmanlike structure.Id. at 863, 321 S.E.2d 359.In other words, even assuming the buyers, in the exercise of ordinary care, would not have known of the latent construction defect, the issue to be determined is whether such "defects either were known to the builder-seller or in the exercise of ordinary care would have been discovered by him."Worthey, supra, 249 Ga. at 106, 287 S.E.2d 9.

In the present case, the initial defect was a pipe leaking inside the bathroom wall shortly after the Seelys moved into the new residence.Only property damage resulted from this defect.The Seelys reported this defect to the builder-sellers, who sent R & R Plumbing to repair the hole in the pipe.The repair by R & R Plumbing was not successful and the pipe started leaking again from the same hole after a few days.There is no evidence that the Seelys knew or should have known of either of these defects before, on each occasion, they discovered water leaking from the bathroom wall.When she slipped and fell in the bathroom, Ms. Seely was unaware that the pipe had started leaking again.Furthermore, there was evidence creating a jury question as to whether, in the exercise of ordinary care, she should have seen and avoided the water hazard on the floor before she stepped in it and fell.SeeOCGA § 51-11-7.

The defect which caused the personal injuries at issue and any further property damage after the attempted repair was the failure to repair the leak in the pipe after it was first discovered by the Seelys and reported to the builder-sellers.Rykard, the licensed plumber who repaired the leak, stated that the soldering method he used to repair the pipe was the generally accepted method of making such a repair.In his deposition, however, he admitted that after he made the repair the pipe started leaking again from the same place because of either a failure of the materials he used or a failure of his workmanship in doing the job.Although R & R Plumbing later filed affidavits by Rykard and another licensed plumber stating that, in making the repair, Rykard complied with the standard of care ordinarily employed by plumbers under the circumstances, these affidavits contradicted the sworn testimony given by Rykard in his deposition without giving any reasonable explanation for the contradiction.Accordingly, under the rule stated in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680(1986), the contradictory testimony is construed against R & R Plumbing on summary judgment leaving an issue of fact as to whether R & R Plumbing negligently repaired the pipe.

There was also evidence concerning the lack of a protective shield over the pipe at issue to protect it from the possibility of being pierced by a nail during construction.There was evidence that no such protective shield had been placed over the pipe, and competent expert testimony was given by an engineer that it was a standard practice in the construction industry for builders to ensure that such protective shields were installed.SeeHudgins, supra at 858, 321 S.E.2d 359;Coursey Bldg. Assoc. v. Baker, 165 Ga.App. 521, 522-523, 301 S.E.2d 688(1983).The expert testimony of two licensed plumbers that it was not the responsibility of plumbers to install protective pipe shields in residential construction jobs was disputed only by the expert testimony of an engineer.There was insufficient evidence to establish any overlapping expertise between the engineer and the plumbers with respect to this aspect of construction, so the engineer was not competent to establish the professional duty of the plumbers.SeeRiggins v. Wyatt, 215 Ga.App. 854, 855-856, 452 S.E.2d 577(1994).Other evidence showed that Singletary, the...