Simons v. Tri-State Const. Co.
| Decision Date | 07 December 1982 |
| Docket Number | No. 5254-7-II,TRI-STATE,5254-7-II |
| Parties | John W. SIMONS, Respondent, v.CONSTRUCTION CO., a corporation, Appellant. |
| Court | Washington Court of Appeals |
Richard L. Martens, Seattle, for appellant.
Jon C. Parker, Hoquiam, for respondent.
Tri-State Construction Co. (Tri-State), which had installed certain sewer pipes for the City of Hoquiam pursuant to a contract with the City, appeals from a partial summary judgment adjudging it liable for damage to Simons' house and property based on the removal of lateral support and from a denial of its motion for summary judgment of dismissal. For the purposes of the summary judgment motion Simons' claim was predicated upon article 1, § 16 of the state constitution. 1
In addition to the question of whether there is a genuine dispute of a material fact as to the loss of lateral support and its cause, this appeal presents the following issue: Is a contractor, doing work for a city under a contract the city is authorized to make, and who is otherwise not liable for damages to a third person because the work is done without negligence and in compliance with the city's plans and specifications, made liable to such third person because of the contractor's obligation to indemnify and hold harmless the city from claims, losses and damages arising from the work?
We conclude that the affidavits and interrogatories considered by the trial court raise a dispute as to a material fact concerning the loss of lateral support and its causes. We also conclude that the indemnity agreement does not impose liability on the contractor. We therefore hold that the trial court erred in granting Simons' summary judgment as to liability and denying Tri-State's motion for summary judgment of dismissal.
Tri-State was the general contractor of a sewer relocation project for the City of Hoquiam, Washington. A portion of the project called for excavation and backfill of trenches located in the street, 20--25 feet in front of Simons' house. The construction agreement between the City and Tri-State included plans and specifications and a provision whereby Tri-State agreed to hold harmless, indemnify and defend the City from all liability claims, losses, or damage arising from the performance of the work. The indemnity clause is as follows:
Indemnity. The Contractor shall hold harmless, indemnify and defend the Owner, the Engineer and his consultants, and each of their officers and employees and agents, from any and all liability claims, losses or damage arising or alleged to arise from the performance of the work described herein, but not including the sole negligence of the Owner or the Engineer, employees and consultants.
Work began in front of Simons' house in November 1977. In January 1978, Simons noticed structural problems with his house: doors on the main floor would not shut; the cement walls and floor in the basement cracked and flooding occurred; the house developed a tilt; and pot holes developed in the front yard. Simons admits there was minor cracking in the basement before the sewer project, but contends the project caused substantial settling, cracking of the basement, and distortion of the house.
Simons brought suit against Tri-State alleging the removal of lateral support damaged the property and that Tri-State negligently performed the work. The City was later joined as a defendant. Simons moved for summary judgment against Tri-State on the theory of loss of lateral support; negligence was not an issue. Tri-State moved for summary judgment of dismissal on the theory that a contractor performing work for a city in accordance with the terms and specifications of the contract is free from any liability for damages resulting from such work absent negligence on his part. 2 The trial court denied Tri-State's motion and granted Simons' motion apparently on the theory that under the indemnity agreement, Simons had a direct cause of action against Tri-State regardless of whether Tri-State was an agent of the City and not negligent or otherwise liable for loss of lateral support.
Pursuant to CR 56(c), a summary judgment is available only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Morris v. McNicol, 83 Wash.2d 491, 519 P.2d 7 (1974), outlined the criteria in granting or denying summary judgment. The salient portions are paraphrased as follows:
(a) A "material fact" is one which controls the outcome of litigation.
(b) The moving party bears the burden of demonstrating there is no dispute as to a "material fact," and all reasonable inferences must be resolved against him. As a corollary to the this proposition, the trial court must consider all evidence and reasonable inferences in a light most favorable to the nonmoving party.
(c) Summary judgment should be denied unless there is but one conclusion that reasonable minds could reach from the evidence.
Additional criteria pertinent to this appeal are found in Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 588 P.2d 1346 (1979), which holds that an affidavit containing expert opinion on an ultimate issue of fact is sufficient to create a genuine issue of material fact which precludes summary judgment; and failure to move to strike an affidavit or portion thereof for noncompliance with CR 56(e) waives any deficiency that might otherwise exist.
We turn first to the grant of partial summary judgment in favor of Simons. An adjoining owner 3 who causes his neighbor's property to slide and slip because of loss of lateral support is liable in damages resulting therefrom under the constitution and law of the state regardless of negligence. However, the sliding and slipping of the soil must occur because of its own weight and not because of the superimposed weight of the buildings or improvements placed thereon. Kelley v. Falangus, 63 Wash.2d 581, 388 P.2d 223 (1964); Muskatell v. Seattle, 10 Wash.2d 221, 116 P.2d 363 (1941); Farnandis v. Great Northern Railway Co., 41 Wash. 486, 84 P. 18 (1906). At common law, the right of the owner to damages for loss of lateral support in the absence of negligence extended only to the land in its natural state. However, under the constitution, the owner is entitled to damages not only to the land in its natural state but also to the buildings and improvements on the property once it is demonstrated that additional lateral thrust from the weight of the improvements has not precipitated or caused the damages. Kelley v. Falangus, supra.
Simons' evidence, as set forth in various affidavits and interrogatories in support of his motion for summary judgment, tends to establish that before November of 1977, when the sewer project was commenced along the street fronting his home, Simons' home was sound with only minor cracks in parts of the concrete and masonry work; that the following January, after completion of the sewer project, there was a noticeable settling of the home resulting in substantial cracks in the concrete basement floor and masonry walls, and a definite tilt to the floors and walls causing doors to misalign and requiring substantial shimming and jacking of the foundation to help alleviate the problem; that a pot hole developed in the yard; and that the settling and damage to the home was the direct result of the sewer project.
Tri-State's evidence in opposition to Simons and in support of its own motion for summary judgment of dismissal consisted of the affidavit of James Hargett, a civil engineer of the firm engaged by the City, who acted as resident engineer of the project and that of William O'Brien, project manager of the sewer project for Tri-State. This evidence supports the proposition that Tri-State's work on the project was done in strict compliance with the plans and specifications of the City of Hoquiam; that some time after the completion of the project the Simons house was personally examined by them and that the "footings, concrete block wall, basement floor, driveway, walls and partitions alleged to have been damaged ..." were inspected; and that numerous cracks with old paint and mortar were observed. The professional opinion of Jim Hargett based on his experience, inspection, and observation, was that the settlement and cracking conditions then present existed before the start of the sewer project.
Mr. O'Brien made his own observations, considered the statement of Simons that the portions observed were last painted prior to the sewer project, and stated, "it is clear that the evidence of settlement and cracking existed prior to the sewer relocation project."
Simons contends that Hargett's opinion should be disregarded because it lacks a factual basis and there is no showing of his expertise. He further contends that O'Brien's affidavit does not warrant consideration since it is not based on personal knowledge nor does it otherwise comply with CR 56(e). He further contends that neither affidavit responds to the plaintiff's contentions of obvious tilt, shimming, and jacking, indicating substantial damages far in excess of previous minor cracks which existed prior to the sewer project. Our review of the record discloses that Simons never moved to strike Tri-State's evidence for the reasons now urged. Simons waived his right to challenge these deficiencies. Lamon v. McDonnell Douglas Corp., supra.
Viewing the inferences created by the affidavit of Mr. Hargett in a light most favorable to Tri-State as the nonmoving party, we are satisfied that the opinion expressed therein created an issue of material fact as to whether the claimed damages resulted from Tri-State's sewer project. This necessitates reversal of the partial summary judgment.
We believe there is an additional reason why summary judgment on liability should have been denied. We do not believe that Simons has established that his soil settled by its own...
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