Soave v. National Velour Corp.

• Citation: 863 A.2d 186
• Decision Date: 14 December 2004
• Docket Number: No. 2003-557-Appeal.,2003-557-Appeal.
• Parties: Joseph SOAVE et al. v. NATIONAL VELOUR CORPORATION et al.
• Court: United States State Supreme Court of Rhode Island

863 A.2d 186

Joseph SOAVE et al. v. NATIONAL VELOUR CORPORATION et al.

No. 2003-557-Appeal.

Supreme Court of Rhode Island.

December 14, 2004.

Stephen P. Cooney, for Plaintiff.

Warren D. Hutchison, Boston, MA, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

PER CURIAM.

This matter came before this Court for oral argument on October 5, 2004, pursuant to an order directing the parties to appear and show cause why the issues raised by this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the case should be decided at this time.

Facts and Procedural History

The plaintiffs, Joseph and Evelyn Soave¹ (collectively plaintiff), appeal from a Superior Court entry of summary judgment in favor of defendant, Alhambra Building Co., Inc. (Alhambra). The plaintiff contends that the trial justice erred in determining that defendant, a building contractor, did not owe a duty of care to plaintiff. The plaintiff asserts that a question of material fact existed that precluded summary judgment. For the reasons stated herein, we deny the appeal and affirm the judgment of the trial justice.

In September 1997, National Velour Corp. (National Velour), a Rhode Island Corporation with a principal place of business in Warwick, Rhode Island, engaged David I. Grist AIA Architect Inc. and David I. Grist & Associates Architects (collectively Grist) for a renovation project on National Velour's property. Grist's scope of work included the design of a parking lot, retaining wall, and loading dock. National Velour thereafter hired Alhambra as the general contractor for the renovation project. The parties do not dispute that Alhambra constructed the retaining wall in accordance with the plans and specifications prepared and provided by Grist and relinquished control of the completed project to National Velour prior to the events pertinent to this appeal.

On July 13, 1998, Joseph Soave sustained an injury to his knee when he fell from the retaining wall. He thereafter commenced a civil action against National Velour, Grist, and Alhambra, alleging that his injuries were proximately caused by the lack of a guardrail along the top of the retaining wall. Alhambra moved for summary judgment on the ground that it could not be held liable for plaintiff's injuries because it had followed the plans and specifications provided by Grist, which did not call for a guardrail. Because it had adhered to those plans, Alhambra maintained that it owed no duty of care to plaintiff.

Before the motion justice, defense counsel argued that a contractor who follows the plans and specifications of an owner or the owner's architect should not be held responsible for damages resulting solely from defective plans in the absence of negligence by the contractor. The plaintiff, on the other hand, argued that the absence of the guardrail in both the plans and the completed structure constituted a defect so patently dangerous that defendant knew or should have known that injury would result. To support its position, plaintiff submitted the affidavit of civil engineer Donald Dusenberry, who stated that the design and construction of the wall without a guardrail violated the Rhode Island State Building Code and that plaintiff's injury was foreseeable at the time of the design and construction of the retaining wall.

The trial justice granted summary judgment to defendant, concluding that defendant owed no duty to plaintiff under the circumstances presented in this case and that the expert's affidavit raised no genuine issue of material fact concerning defendant's negligence. We agree.

Standard of Review

"This Court reviews a grant of summary judgment on a de novo basis." Johnson v. Newport County Chapter for Retarded Citizens, Inc., 799 A.2d 289, 291 (R.I.2002) (citing Marr Scaffolding Co. v. Fairground Forms, Inc., 682 A.2d 455, 457 (R.I.1996)). "Accordingly, if our review of the admissible evidence viewed in the light most favorable to the nonmoving party reveals no genuine issues of material fact, and if we conclude that the moving party was entitled to judgment as a matter of law, we shall sustain the trial justice's granting of summary judgment." Id. (quoting Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.1996)). "The nonmoving party, however, must present evidence that a disputed material fact exists and cannot prevail by simply relying on allegations or denials in the pleadings." Id. (citing Heflin v. Koszela, 774 A.2d 25, 29 (R.I.2001)).

Analysis and Discussion

I Alhambras Duty of Care

In Rhode Island, to state a viable claim for negligence, the complainant must allege facts showing the existence of a legal duty of care owed by defendant to plaintiff. Ferreira v. Strack, 636 A.2d 682, 685 (R.I.1994). Whether such a duty of care runs from a defendant to a plaintiff is a question of law for the court to decide. Hennessey v. Pyne, 694 A.2d 691, 697 (R.I.1997). If the court concludes that no duty exists, "then the trier of fact has nothing to consider and a motion for summary judgment must be granted." Ferreira, 636 A.2d at 685 (quoting Barratt v. Burlingham, 492 A.2d 1219, 1222 (R.I.1985)).

This case, therefore, first requires us to analyze the duty of care owed to third parties by a general contractor who has: (1) fully adhered to plans and specifications provided by an architect or engineer; and (2) relinquished control of the completed project to the owner. On this point, the hearing justice found that "a construction contractor, who has followed plans and specifications provided by the owner or the owner's architect or engineer, will not be responsible for loss or damages that result solely from the defective plans or specifications in the absence of negligence by the contractor or an expressed warranty that his work is free from defects," adding that "the [c]ourt believes this is the better rule, and that a contractor should be able to rely on the specialized expertise of architects or consulting engineers, when it comes to matters such as conformity to building codes or other matters requiring specialized knowledge." We agree with the hearing justice's decision and the ultimate result in this case. Because this is a case of first impression in this jurisdiction, however, a survey of the historical journey of this issue is helpful.

Various jurisdictions have addressed the issue of contractor liability. The famous English case of Winterbottom v. Wright, 152 Eng. Rep. 402 (Q.B. 1842), first held that a building contractor would not be liable for injury to third persons after the contractors work had been completed and accepted by the property owner. Speiser et al., The American Law of Torts § 15:116 at 844-46 (1987). See also Daugherty v. Herzog, 145 Ind. 255, 44 N.E. 457 (1896), abrogated by Peters v. Forster, 804 N.E.2d 736, 742 (Ind.2004) (holding that "a builder or contractor is liable for injury or damage to a third person as a result of the condition of the work, even after completion of the work and acceptance by the owner, where it was reasonably foreseeable that a third party would be injured by such work due to the contractor's negligence"); Curtain v. Somerset, 140 Pa. 70, 21 A. 244 (1891). Over time, this principle, criticized as "overbroad on laissez faire doctrines," Speiser § 15:116 at 846, was slowly eroded by American courts, which considered it incompatible with both legal theory and contemporary societal mores favoring liability for negligence. Id. The rule holding contractors liable in a quasi-fraud sense for turning over work with knowledge of its defective and/or dangerous quality was one of the first incursions. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, 104A at 722 & n. 17 (5th ed. 1984) (citing Pennsylvania Steel Co. v. Elmore & Hamilton Contracting Co., 175 F. 176 (D.N.Y.1909)). Thereafter, some courts began to recognize liability whenever a contractor turned over a product or instrumentality knowing of its "imminent" or "inherent" danger. Id. at 723 n. 19 (citing McCloud v. Leavitt Corp., 79 F.Supp. 286 (E.D.Ill.1948); Johnston v. Long, 56 Cal.App.2d 834, 133 P.2d 409 (1943); Cox v. Ray M. Lee, Co., 100 Ga.App. 333, 111 S.E.2d 246 (1959); Holland Furnace Co. v. Nauracaj, 105 Ind.App. 574, 14 N.E.2d 339 (1938); Foley v. Pittsburg-Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1949)).

Notwithstanding its gradual disappearance, a minority of states has adhered to the Winterbottom rule to absolve builders and contractors of negligence liability. The Supreme Court of Mississippi took such an approach in Trustees of the First Baptist Church of Corinth v. McElroy, 223 Miss. 327, 78 So.2d 138 (1955). In that case, defendant building company contracted to build a large church in accordance with plans and specifications provided by an architect and subject to approval of the architect and general superintendent. Id. at 139. The builder completed the job and the architect and superintendent both inspected and approved the work. Id. Nearly two years later, the chimney flue exploded and caused considerable damage to the church. Id. The church then sued the contractor, alleging that its negligence caused the explosion and subsequent damage. Id. The court held that:

"[A] construction contractor who has followed plans and specifications furnished by the contractee, his architect or engineer, and which have proved to be defective or insufficient, will not be responsible to the contractee for loss or damage which results solely from the defective or insufficient plans or specifications, in the absence of negligence on the contractor's part, or any express warranty by him as to their being sufficient or free from defects." Id. at 141.

The court thereafter found that there was no proof that the builder had been...