Stewart v. Cox

• Decision Date: 25 May 1961
• Docket Number: No. L,L
• Citation: 13 Cal.Rptr. 521,55 Cal.2d 857,362 P.2d 345
• Court: California Supreme Court
• Parties: , 362 P.2d 345 Ralph E. STEWART et al., Respondents, v. Lewis COX, Appellant. * A. 26215

Page 521

13 Cal.Rptr. 521

55 Cal.2d 857, 362 P.2d 345

Ralph E. STEWART et al., Respondents, v. Lewis COX, Appellant. ^*

No. L. A. 26215.

Supreme Court of California

May 25, 1961.

Rehearing Denied June 21, 1961.

Caryl Warner, Warner, Sutton & Warner and Barbara Warner, Los Angeles, for appellant.

Max Candiotty and Norman Warren Alschuler, Los Angeles, for respondents.

GIBSON, Chief Justice.

Plaintiffs, Ralph and June Stewart, brought this action for damages to their real property resulting from the escape of water from a swimming pool constructed on the property in a negligent manner. Prior to trial plaintiffs received $4,500 from defendant Wahlstrom Bros., Inc. (hereafter called Wahlstrom), the general contractor who had agreed to construct the pool for them, and they dismissed the action as to this defendant. After commencement of trial, defendants Walter I. Skinner and Walter I. Skinner Pool Plastering Co. (hereafter called Skinner), who did the plastering work on the pool, were dismissed from the action upon paying plaintiffs $750. Plaintiffs recovered judgment against defendant Cox, the subcontractor who installed the concrete, and Cox has appealed.

About the middle of August 1957, two days after the pool was first filled with water, a thin crack appeared in the pool, and Mrs. Stewart promptly notified Wahlstrom. Toward the end of September, at the request of Wahlstrom, the pool was examined by Carl J. Stokes, an employee of Skinner, and the next day, at Wahlstrom's instruction, he repaired the crack by widening it slightly and applying plaster to it. When the pool was again filled with water the following day, the crack reappeared and was a little wider and longer than before, and Mrs. Stewart immediately notified Wahlstrom. Two other cracks soon appeared on the same side of the pool. Water loss was two inches per day at first and later three inches per day. Plaintiffs' house and yard were undermined and damaged by the escaping water. Early in November a representative of Wahlstrom pumped all the water out of the pool.

The pool was to be constructed by applying a type of concrete called gunite to reinforcing steel in such a manner that the steel would be completely embedded in it. In applying the gunite, Cox permitted the reinforcing steel to lie on the ground, with the result that the gunite did not completely surround it and was not properly reinforced by it. The gunite was too thin for its purpose and not of the thickness called for by the plans. An expert testified that small cracks in swimming pools are not uncommon, that it is not possible to determine by looking at such a crack whether it is caused by a structural defect, and that the usual practice is to send a repair man to fix a small crack by widening it, packing it with cement, and plastering over the top of it.

The trial court found that Cox and his employees gunited the pool negligently that as a direct and proximate result water escaped and damaged plaintiffs' house, pool, and yard, and that plaintiffs were not guilty of contributory negligence. Total damages were found to be $24,474, from which the court deducted the sums of $4,500 paid by Wahlstrom and $750 paid by Skinner, giving plaintiffs judgment for $19,224.

A preliminary question is presented by the contention of Cox that the defendants were joint tortfeasors and that recovery against him is barred as a result of the payments made to plaintiffs by Skinner and Wahlstrom and the dismissals of these defendants prior to judgment. It appears without dispute that the payments were made pursuant to covenants not to sue and that each document recited that it was not intended as a release of any claim against any person and that plaintiffs reserved their rights to proceed against all persons except the other party to the covenant.

A covenant not to sue one of several joint tortfeasors does not release the others. Lewis v. Johnson, 12 Cal.2d 558, 562, 86 P.2d 99; see Holtz v. United Plumbing & Heating Co., 49 Cal.2d 501, 504-505, 319 P.2d 617; 2 Witkin, Summary of California Law (7th ed. 1960), pp. 1188-1189; Rest., Torts, § 885; cf. Pellett v. Sonotone Corp., 26 Cal.2d 705, 710 et seq., 160 P.2d 783, 160 A.L.R. 863. While the dismissal as to Skinner took place in open court with consent of the trial judge, it was made pursuant to the agreement between plaintiffs and Skinner and was obviously for the purpose of carrying out the covenant. Since the agreement was in the form of a covenant not to sue and did not operate as a release of Cox, the dismissal should not be considered as having that effect. The case of Markwell v. Swift & Co., 126 Cal.App.2d 245, 272 P.2d 47, is disapproved insofar as it may be in conflict with the views expressed herein. ¹

The next question is whether a subcontractor such as Cox may be liable to the owner, with whom he was not in privity of contract, for damage occurring after his work had been accepted by the contractor and the owner. In an early case this court stated that where the work of an independent contractor is completed and accepted by the owner, the contractor is not liable to third persons for damage or injury suffered as a result of the negligent manner in which he performed his contract. Boswell v. Laird, 1857, 8 Cal. 469, 498; in accord, Kolburn v. P. J. Walker Co., 38 Cal.App.2d 545, 550, 101 P.2d 747. An exception to this rule was first recognized where the thing constructed was imminently dangerous to third persons to the knowledge of the contractor (Johnston v. Long, 56 Cal.App.2d 834, 837, 133 P.2d 409), and the exception was later extended in accordance with MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, 1053, L.R.A.1916F, 696, to all things 'reasonably certain to place life and limb in peril when negligently made.' Hale v. Depaoli, 33 Cal.2d 228, 232, 201 P.2d 1, 13 A.L.R.2d 183; in accord, Johnson v. City of San Leandro, 179 Cal.App.2d 794, 800-801, 4 Cal.Rptr. 404; Hogan v. Miller, 153 Cal.App.2d 107, 112-113, 314 P.2d 230; Freeman v. Mazzera, 150 Cal.App.2d 61, 64, 309 P.2d 510; and Schifano v. Security Building Co., 133 Cal.App.2d 70, 72 et seq., 283 P.2d 306.

In Dow v. Holly Manufacturing Co., 49 Cal.2d 720, 724-725, 321 P.2d 736, 739, we quoted the following language from Prosser on Torts (2d ed. 1955), pp. 517-519: 'Until quite recent years it was the prevailing rule that the contractor would be liable for any injury resulting from his negligence before his work was completed, but that his responsibility was terminated and he was not liable to any third person once the structure was completed and accepted by the owner. * * * The present state of the law is not altogether clear because of the survival of so many of these exceptions, which afford an opportunity to hold the defendant liable without stating any general rule. It appears, however, that the analogy of MacPherson v. Buick Motor Co. is at last being accepted. Several recent decisions have placed building contractors on the same footing as sellers of goods, and have held them to the general standard of reasonable care for the protection of anyone who may foreseeably be endagered by the negligence, even after acceptance of the work.' See also Hanna v. Fletcher, 97 U.S.App.D.C. 310, 231 F.2d 469, 472-473, 58 A.L.R.2d 847. It is said in an annotation to the Hanna case that there can hardly be any doubt that a contractor should be liable to third persons for negligence which causes a reasonably foreseeable danger to them. 58 A.L.R.2d 865, 872.

In Biakanja v. Irving, 49 Cal.2d 647, 649 et seq., 320 P.2d 16, 65 A.L.R.2d 1358, we recognized that liability for negligence can exist without privity although the risk involved is only damage to property, and we held that the determination whether in a specific case the defendant will be held liable to a third person is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that he suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, and the policy of preventing future harm. See also United States v. Rogers & Rogers, D.C., 161 F.Supp. 132. The liability of a contractor or subcontractor must be determined by applying this general test rather than by arbitrarily placing them in a separate category subject to a special rule. Cf. Garcia v. Soogian, 52 Cal.2d 107, 110, 338 P.2d 433.

Here it was obvious that the pool for which Cox provided the gunite work was intended for the plaintiffs and that property damage to them and possibly to some of their neighbors was foreseeable in the event the work was so negligently done as to permit water to escape. It is clear that the transaction between Wahlstrom and Cox was intended to specially affect plaintiffs. There is no doubt that plaintiffs suffered serious damage, and the court found, supported by ample evidence, that the injury was caused by Cox's negligence. Under all the circumstances Cox should not be exempted from liability if negligence on his part was the proximate cause of the damage to plaintiffs.

Cox contends that Wahlstrom's conduct after the crack in the pool was discovered constituted a superseding cause which prevents Cox from being liable. He asserts that Wahlstrom had actual knowledge for a period of over two months that the pool had cracked and was leaking, as a result of which a dangerous quantity of water was going into the ground, and that Wahlstrom undertook the repairing of the pool without informing Cox of the defects but negligently failed to make effective repairs or prevent refilling of the pool.

The rules set forth in sections 442-453 of the Restatement of Torts for determining whether an intervening act of a third person constitutes a superseding cause which prevents antecedent negligence of the defendant from being a...