Temple Sinai-Suburban Reform Temple v. Richmond

• Decision Date: 16 August 1973
• Docket Number: No. 1749-A,SINAL-SUBURBAN,1749-A
• Citation: 308 A.2d 508,112 R.I. 234
• Parties: TEMPLEREFORM TEMPLE v. Isidor RICHMOND et al. ppeal.
• Court: Rhode Island Supreme Court

Page 508

308 A.2d 508

112 R.I. 234

TEMPLE SINAL-SUBURBAN REFORM TEMPLE v. Isidor RICHMOND et al.

No. 1749-Appeal.

Supreme Court of Rhode Island.

Aug. 16, 1973.

Higgins, Cavanagh & Cooney, Joseph V. Cavanagh, Providence, for plaintiff

Keenan, Rice, Dolan & Reardon, John T. Keenan (deceased), Providence, for defendants Isidor Richmond and Carney Goldberg.

Tillinghast, Collins & Graham, Thomas R. Wickersham, Providence, for third-party defendant, Acme Brick Co.

OPINION

KELLEHER, Justice.

The question raised in this appeal is: How far has the 'citadel' fallen?

The answer is; All the way!

Isidor Richmond and Carney Goldberg are architects (architects). In March, 1961, they agreed to prepare the plans and specifications for a new synagogue to be located in Cranston and to be known as Temple Sinai Suburban Reform Temple (Temple). Officials of the Temple hired Molony & Rubien Construction Company (Molony & Rubien) as the general contractors. In August, 1961, Molony & Rubien purchased the bricks which were to be part of the Temple's exterior design from P. L. Monroe & Son, Inc. (Monroe). The bricks had been manufactured by Acme Brick Company (Acme).

The construction of the Temple was completed in 1962. Sometime in 1965, the Temple trustees were informed that the exterior brick was beginning to 'spall.' To a bricklayer, the word 'spall' is a word of art. It signifies the breaking off, chipping, flaking or disintegration of the facing of a brick. In 1965, the estimated cost of repairing the spalling was $9,450.

Temple Sinai instituted this litigation in February, 1967, when it sued the builder, the architects, and Acme. In portions of its complaint concerning the architects, the Temple alleges that the architects were liable because they were negligent in drawing up the specifications and they breached 'certain warranties.' Later, in June, 1971, the architects were permitted to file as third party plaintiffs against Acme. In their complaint, the architects allege that if either of them is liable to the Temple, his liability will be based solely on the defective materials manufactured by Acme. The architects are before us on their appeal from an order entered in the Superior Court granting Acme's motion for a summary judgment on the grounds that there is 'no privity between the parties' and the complaint 'does not state a cause of action against the third party defendant.'

At this point we shall briefly review the path privity has taken in this jurisdiction as defendants in neglignece cases have sought to protect themselves from tort liability which is based upon some contractual obligation.

We begin with McCaffrey v. Mossberg & Granville Mfg. Co., 23 R.I. 381, 50 A. 651 (1901), where the plaintiff who sought damages from an alleged negligent manufacturer of machinery could not prevail because of a lack of privity and a failure to describe the machinery as 'imminently dangerous.' One of the recognized exceptions to a manufacturer's nonliability to the remote vendee or other third persons has been in those instances where the damages were caused by a product which has been variously described as 'imminently dangerous,' 'inherently dangerous,' or 'intrinsically dangerous.'

The first significant departure from the requirement of privity can be found in Minutilla v. Providence Ice Cream Co., 50 R.I. 43, 144 A. 884 (1929), where the maker of food who furnished through a retailer unwholesome food was held liable for injuries suffered by a customer who consumed a mixture of ice cream and bits of glass. In his concurrence in Henry v. John W. Eshelman & Sons, 99 R.I. 518, 525, 209 A.2d 46, 50 (1965), Mr. Justice Joslin observed that since the doctrine of privity was born of judicial fiat, it could be terminated in the same fashion.

Within recent times our actions have given meaning to the Justice's words. In Rampone v. Wanskuck Buildings, Inc., 102 R.I. 30, 227 A.2d 586 (1967), we ruled that a landlord is liable to a tenant or any other person properly on the premises whose injuries are attributable to the landlord's failure to abide by his promise to repair the premises. A secretary who was injured because the brakes of her boss's recently inspected automobile became inoperable was permitted to sue the inspector because of negligence in failing to discover the defect. Buszta v. Souther, 102 R.I. 609, 232 A.2d 396 (1967). The defense of lack of privity was rejected and the rule of strick liability was imposed in those instances when the consumer sustains injuries from a product that has been improperly designed, manufactured, or packaged. Ritter v. Narragansett Elec. Co., 109 R.I. 176, 283 A.2d 255 (1971).

Much that has been written by judges and legal pundits about the assault upon the citadel of privity need not be repeated. The time has come to declare in simple, direct language that in a tort action for negligence against a manufacturer or supplier whether or not privity exists is of no moment. In such circumstances, the liability or nonliability can be determined by the application of the usual principles of tort law regardless of the lack of a contractual relationship between the parties or whether damages are sought for injuries to persons or property. We offer the following support for the views expressed here. Carter v. Yardley & Co., 319 Mass. 92, 64 N.E.2d 693 (1946); Spence v. Three Rivers Builders & Masonry Supply, 353 Mich. 120, 90 N.W.2d 873 (1958); Steinberg v. Coda Roberson Constr. Co., 79 N.M. 123, 440 P.2d 798 (1968); Corprew v. Geigy Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967); American Reciprocal Insurers v. Bessonette, 235 Or. 507, 384 P.2d 223, 385 P.2d 759 (1963); Smith v. Atco Co., 6 Wis.2d 371, 94 N.W.2d 697 (1959); Carolina Home Builders, Inc. v. Armstrong Furnace Co., S.C., 191 S.E.2d 774 (1972); 1 Frumer & Friedman, Products Liability § 5.03, 5.03(1) n. 20, 5.03(2), 5.03(5) (b); The Assault Upon The Citadel, 69 Yale L.J. 1099 (1960); The Fall of...