Stewart v. Schmieder

• Decision Date: 23 June 1980
• Docket Number: No. 66437,66437
• Citation: 386 So.2d 1351
• Parties: Laura Jean STEWART, as Natural Tutrix of Clerice Yvett Wilson v. Don SCHMIEDER, d/b/a Schmieder Enterprises et al. Dorothy Franklin JEFFERSON v. Don SCHMIEDER, d/b/a Schmieder Enterprises et al. Roland DESHOTEL v. 12055 AIRLINE CORPORATION et al. Billie Jean McGOWAN, Individually and as Natural Tutrix of her Minor Child, Cheryl Sue McGowan v. Don SCHMIEDER, d/b/a Schmieder Enterprises et al. Stanley L. STEVENS v. 12055 AIRLINE CORPORATION et al.
• Court: Louisiana Supreme Court

Page 1351

386 So.2d 1351

Laura Jean STEWART, as Natural Tutrix of Clerice Yvett Wilson v. Don SCHMIEDER, d/b/a Schmieder Enterprises et al.

Dorothy Franklin JEFFERSON v. Don SCHMIEDER, d/b/a Schmieder Enterprises et al.

Roland DESHOTEL v. 12055 AIRLINE CORPORATION et al.

Billie Jean McGOWAN, Individually and as Natural Tutrix of

her Minor Child, Cheryl Sue McGowan v. Don SCHMIEDER, d/b/a Schmieder Enterprises et al.

Stanley L. STEVENS v. 12055 AIRLINE CORPORATION et al.

No. 66437.

Supreme Court of Louisiana.

June 23, 1980.

Rehearing Denied Sept. 12, 1980.^*

Walter G. Monsour, Jr., Parish Atty., Frank J. Gremillion, Asst. Parish Atty., for City of Baton Rouge and Parish of East Baton Rouge, applicant.

John Dale Powers, David M. Vaughn, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for Stanley L. Stevens, respondent.

Gordon M. White, Steve M. Marks, Baton Rouge, for Dorothy Franklin Jefferson, plaintiff-respondent.

William J. Doran, Jr., Doran & Kivett, Baton Rouge, for Richard Schmieder, defendant-respondent.

Thomas K. Kirkpatrick, Gary Keyser, Kirkpatrick, Keyser & Kirkpatrick, Baton Rouge, for Billie Jean McGowan and Cheryl Sue McGowan, respondents.

Harris D. Copenhaver, Jr., Airhart & Copenhaver, David W. Robinson, Watson, Blanche, Wilson & Posner, Charles William Roberts, Mengis, Roberts, Durant & Carpenter, Paul H. Due, Due, Dodson & deGravelles, Baton Rouge, John A. Bivins, Mouton, Roy, Carmouche, Hailey, Bivins & McNamara, Lafayette, Ben W. Lightfoot, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for respondents.

DIXON, Chief Justice.^*

These five consolidated suits were brought against the City of Baton Rouge and the Parish of East Baton Rouge following the collapse, during the final stages of construction, of a building owned and being constructed by Don H. Schmieder. Three workmen, Jimmy Lee Wilson, Franklin Jefferson and William H. McGowan, were killed by the collapse, and two others, Roland Deshotel and Stanley Stevens, were injured. The trial court found that the City-Parish, Roy Rackley (the architect employed by Schmieder) and the prospective tenant of the building were liable.¹ The Court of Appeal reversed against the tenant, Rust Engineering Company, but affirmed the judgment against the City-Parish and the architect, Roy Rackley. Writs were granted on the application of the City-Parish.

The facts are as follows. Schmieder agreed to construct and then to lease a building located on his property to Rust Engineering Company. He retained Rackley to draw the plans and specifications for the building. The Baton Rouge Building Code required that plans and specifications drawn by a licensed architect or civil engineer accompany any application for a building permit for the type of building proposed. Five sheets of plans were prepared when Rackley was instructed to cease work and to apply for a permit from the City-Parish, using those plans completed. At that time the plans were incomplete and inadequate for purposes of construction. Rackley submitted the plans on November 28, 1973, and certified that they complied with the code, that he would inspect the construction and that on completion he would certify that the building had been completed in accordance with the plans and specifications.

Initially, the City-Parish refused to issue a permit, and indicated that more complete plans would be required. A permit was nevertheless issued on January 25, 1974, marked "shell only." The plans and specifications were never completed.

During construction, Rackley visited the building site, even though he was never called upon by Schmieder to make inspections. On the site he noted that there were a number of deviations from the incomplete plans he had submitted, and that electrical work was being done despite the fact that such work was not permitted under the shell permit that had been issued. He therefore on two occasions wrote to Schmieder pointing out the problems and suggesting that they be remedied. Copies of the letters were sent to and received by the City-Parish. Rackley also consulted with Vincent E. First, the manager of the Baton Rouge office of Rust Engineering Company, who had become concerned with the structural safety of the building. First communicated those concerns to the City-Parish. As a result, representatives of the City-Parish building official indicated by letter to Rackley that a certificate of occupancy would not be issued until the problems pointed to in Rackley's last letter to Schmieder were corrected.

On September 25, 1974 Rackley made an inspection and by hand delivered letter indicated to the City-Parish that his recommendations had been followed and the problems were solved. At that time, however, he had not been able to verify that that was actually the case. Five days later, on September 30, 1974, the building collapsed. The consensus of the experts who testified at trial was that the collapse was the result of a shear failure in the concrete roof at the point where the roof was connected to the north wall. The failure was the result of faulty design which allowed insufficient support for the roof and failed to take into account the shrinkage which occurred when the concrete roof cured.

The duties and powers of the City-Parish building official (the head of the construction permit and inspection department) are set out by ordinance in the Baton Rouge Building Code. Section 5(b) provides:

"The building official shall have the power and duty to enforce all of the provisions of this title; shall have general supervisory authority over the administration and enforcement of all building codes and ordinances; and shall coordinate the administration and enforcement of all such ordinances to insure that all provisions thereof are fully complied with before the issuance of necessary certificates of occupancy; all permits shall be issued by him and he shall collect all fees provided herein, and transmit the same to the director of finance. He shall examine premises for which permits have been issued, and shall make necessary inspections to see that the provisions of law are complied with and that construction is prosecuted safely. He shall, when requested by proper authority, or when the public interest requires, make investigations in connection with matters referred to in the building code, and render written reports on the same. He shall issue such notices and orders as may be necessary to enforce compliance with the provisions of the building code, to remove illegal or unsafe conditions, to secure the necessary safeguards during construction, and to require adequate exit facilities in buildings and structures."

Section 102.6 provides:

"Application for permits shall be accompanied by drawings of the proposed work, drawn to scale, showing foundation plans, floor and roof plans, elevations, sections and structural details sufficient to define completely the proposed construction. All plans shall be accompanied by duplicate plot plans, elevations, sections and structural details sufficient to define completely the proposed construction. All plans shall be accompanied by duplicate plot plans on letter-size sheets showing all lot dimensions and the location of the structure upon the lot or property with reference to each lot line. For all buildings or structures except as otherwise provided by this section, the application for a building permit shall be accompanied by a complete set of plans and specifications prepared by an architect or civil engineer licensed in accordance with Louisiana law, or under his supervision, and a certificate signed by the licensed architect or civil engineer to the effect that the said plans and specifications comply with and are in conformity with the requirements of this Code, the state fire code and the state sanitary code and that said plans and specifications were prepared by him or under his supervision; and, all applications shall also be accompanied by a load and stress sheet showing the weights carried by the supports, including columns, posts, girders, lintels, pillars, foundations and footings, when the building is fully loaded, and the safe loads such supports, etc., will carry and stress sheet showing the stresses caused by the required wind load and the manner in which they are transmitted into the ground. The application for a permit for any new building or structure shall be accompanied by a complete description of the kind and size of such buildings, the character of materials to be used, the ground area to be covered, and the net cubic contents of such building. Before a certificate of occupancy is issued, the architect or civil engineer must furnish the building official a certificate certifying that the building or structure has been completed, to the best of his knowledge, in accordance with the plans and specifications as approved by the inspection division and the maximum live load each floor will safely carry.

. . ."

As to the issuance of permits, Section 102.9 provides:

"The building official shall examine applications for permits, within a reasonable time after filing. If, after examination, he finds no objections to the same and it appears that the proposed work will be in compliance with the laws and ordinances applicable thereto and the proposed construction or work will be safe, he shall approve such application and issue a permit for the proposed work as soon as practicable. If his examination reveals . . . that some objection exists, he shall reject such application and note his findings in a written report to be attached to the application and deliver a copy to the applicant. . . ."

In this case a permit marked "shell only" was issued. Such a partial permit is authorized by Section 102.11, which provides:

"Nothing in this code shall be construed to prevent the building official from issuing a permit for the construction of part of a building or structure before the entire plans and...