Steinberg v. Coda Roberson Const. Co.

Decision Date01 April 1968
Docket NumberNo. 8489,8489
Citation79 N.M. 123,440 P.2d 798,1968 NMSC 55
PartiesMr. & Mrs. Nat STEINBERG, Plaintiffs-Appellees, v. CODA ROBERSON CONSTRUCTION CO., Defendant-Appellant.
CourtNew Mexico Supreme Court
OPINION

COMPTON, Justice.

The plaintiffs were awarded judgment in the Small Claims Court of Bernalillo County in the amount of $465.42 for repairs necessitated by leakage of the roof of a house built by the defendant and presently owned by the plaintiffs. Upon appeal, the District Court of Bernalillo County entered judgment affirming the judgment of the Small Claims Court, and the defendant again appeals.

The record reveals that in January of 1959 the appellant sold the house in question to a couple named Bell. As part of sale the appellant delivered to the Bells a booklet entitled 'The Inside Story of Your New Quality ROBERSON Home.' At the top of the last page of the booklet the word 'GUARANTEES' is printed, and directly under that is printed 'Roof--10 Years' followed by other so-called guarantees.

In November of 1963 the Bells sold the house to the appellees. The roof began to leak between November 1963 and December 1964. Appellees notified the appellant of the leakage, but appellant took no affirmative action in the matter. As a result of the leakage, it was necessary to repair the house. The amount awarded for repairs is not in controversy.

The appellant contends that it is not liable in either negligence or warranty for the deterioration of the roof. Although appellant is willing to treat this case as though it were a manufacturer of personalty, it argues that a manufacturer is liable for negligence to a purchaser not in privity with the manufacturer only when a casualty results from a product which, when defective, is reasonably certain to endanger life and limb, citing MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696; Trans World Airlines v. Curtiss-Wright Corp., 1 Misc.2d 477, 148 N.Y.S.2d 284, aff'd 153 N.Y.S.2d 546; Fentress v. Van Etta Motors, 157 Cal.App.2d Supp. 863, 323 P.2d 227 (1958).

The law of manufacturers' liability has been confusing since the days of Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (1842), when tort and contract law became intermingled by the dicta of that court and 'privity of contract' became a factor in manufacturers' tort liability. Carter v. Yardley & Co., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559. Since that time, and as the dominance of the industrial complex in our society has created a need for an increase in the purview of manufacturers' responsibilities to the public, courts have noted various exceptions to the privity of contract requirement. Consequently, cases in this field became what has been termed 'hopelessly at a variance.' Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873. Under the present posture of the law, the great weight of authority no longer recognizes privity of contract as having a place in tort law. Carter v. Yardley & Co., supra; Spence v. Three Rivers Builders & Masonry Supply, Inc., supra; Fisher v. Simon, 15 Wis.2d 207, 112 N.W.2d 705; American Reciprocal Insurers v. Bessonette, 235 Or. 507, 384 P.2d 223, 385 P.2d 759. See 46 Am.Jur., Sales, § 812 (Cum.Supp.1967); 1 Frumer & Friedman, Products Liability, § 5.03, 5.03(1) note 20, 5.03(2), 5.03(5)(b); Annots., 16 A.L.R.3d 683; 74 A.L.R.2d 1111; 164 A.L.R. 569.

By our cases this court has generally accepted what has been described as the general rule, Wood v. Sloan, 20 N.M. 127, 148 P. 507, L.R.A.1915E, 766, 12 N.C.C.A. 562 and Reif v. Morrison, 44 N.M. 201, 100 P.2d 229, and having done so we now fall in line with the current trend and adopt the reasoning and the statement expressed in Smith v. Atco Company, 6 Wis.2d 371, 94 N.W.2d 697, 74 A.L.R.2d 1095, which reads:

'We deem that the time has come for this court to flatly declare that in a tort action for negligence against a manufacturer, or supplier, whether or not privity exists is wholly immaterial. The question of liability should be approached from the standpoint of the standard of care to be exercised by the reasonably prudent person in the shoes of the defendant manufacturer or supplier. Such an approach will eliminate any necessity of determining whether a particular product is 'inherently dangerous.' If a manufacturer or supplier is hereafter to be relieved from liability as a matter of law by the courts, such result should be reached on the basis that there was no causal negligence established against the defendant rather than that the product was not inherently dangerous.'

Privity of contract no longer being recognized as a factor when considering liability on a negligence...

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21 cases
  • Howell v. Burk
    • United States
    • Court of Appeals of New Mexico
    • July 19, 1977
    ...in Tipton v. Clower, 67 N.M. 388, 356 P.2d 46 (1960); Baker v. Fryar, 77 N.M. 257, 421 P.2d 784 (1966); Steinberg v. Coda Roberson Construction Co., 79 N.M. 123, 440 P.2d 798 (1968). When did the builder become exposed to this expanded liability? The exposure came when the cause of action a......
  • Cleveland By and Through Cleveland v. Piper Aircraft Corp.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 15, 1989
    ...the aircraft to avoid the risk of injury was a proximate cause of the Plaintiff's injuries. 14 See Steinberg v. Coda Roberson Construction Co., 79 N.M. 123, 440 P.2d 798, 799 (1968); R.Vol. I at Tab 104 (Court's Jury Instructions), Nos. 4-9 & 11-13. The record contains substantial evidence ......
  • Fortier v. Dona Anna Plaza Partners
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 17, 1984
    ...contractor owes a duty of care to subsequent purchasers of the property on which the contractor has worked. Steinberg v. Coda Roberson Constr. Co., 79 N.M. 123, 440 P.2d 798 (1968). Equally clear is the proposition that, although as a general rule a contractor is responsible for injuries re......
  • Lopez v. Delta Int'l Mach. Corp.
    • United States
    • U.S. District Court — District of New Mexico
    • July 24, 2017
    ...and strict-products-liability claims fall within the tort category. See Steinberg v. Coda Roberson Constr. Co., 1968-NMSC-055, ¶¶ 6-7, 440 P.2d 798, 799 (finding a tort cause of action for negligence against a supplier, regardless of privity of contract); Stang v. Hertz Corp., 1972-NMSC-031......
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1 books & journal articles
  • Cardozo Revisited: Liability to Third Parties; a Real Property Perspective
    • United States
    • Seattle University School of Law Seattle University Law Review No. 7-02, December 1983
    • Invalid date
    ...86 Ill. App. 3d 1082, 408 N.E.2d 723 (1980). 141. 3 N.Y.2d 137, 143 N.E.2d 895 (1957). 142. 217 N.Y. 382, 111 N.E. 1050 (1916). 143. 79 N.M. 123, 440 P.2d 798 144. 10 M and W 109, 152 Eng. Rep. 402 (1842). 145. Steinberg, 79 N.M. at 124, 440 P.2d at 799 (citations omitted) (emphasis added).......

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