Wright v. Creative Corp.

• Decision Date: 25 April 1972
• Docket Number: No. 70--694,70--694
• Citation: 498 P.2d 1179,30 Colo.App. 575
• Parties: Patrick Francis WRIGHT, a minor by and through his father and next friend, Francis E. Wright, and Francis E. Wright, Plaintiffs-Appellants, v. CREATIVE CORPORATION, a Colorado corporation, d/b/a Hallmark Homes Incorporated, and Milton Taylor, d/b/a Perma Construction Company, Defendants-Appellees. . II
• Court: Colorado Court of Appeals

Page 1179

498 P.2d 1179

30 Colo.App. 575

Patrick Francis WRIGHT, a minor by and through his father

and next friend, Francis E. Wright, and Francis E.

Wright, Plaintiffs-Appellants, v. CREATIVE CORPORATION, a Colorado corporation, d/b/a Hallmark

Homes Incorporated, and Milton Taylor, d/b/a Perma

Construction Company, Defendants-Appellees.

No. 70--694.

Colorado Court of Appeals, Div. II.

April 25, 1972.

Rehearing Denied June 6, 1972.

Williams, Trine & Greenstein, P.C., William A. Trine, Joel H. Greenstein, David W. Griffith, Boulder, for plaintiffs-appellants.

Yegge, Hall & Evans, C. Willing Browne, Denver, for defendant-appellee, Creative Corp., a Colorado corporation, d/b/a Hallmark Homes, Inc.

Darrell J. Skelton, Dale E. Miller, Wheatridge, for defendant-appellee Taylor, d/b/a Perma Construction Co.

SMITH, Judge.

The defendant, Creative Corporation, doing business as Hallmark Homes, built a home in which it installed a sliding glass door containing clear plate glass. Some time later, in April 1966, the other defendant, Milton Taylor, doing business as Perma Construction Company, remodeled the home built by Creative. Directed by the owners of the house to add another room, Taylor relocated the sliding glass door containing the original glass installed by Creative. The plaintiff, Francis E. Wright, purchased the home in May 1969, from the original owners and occupied it immediately. On July 6, 1969, the minor plaintiff, then five years old, ran into the glass door which shattered into pieces. The minor plaintiff was cut by the broken pieces of glass. Plaintiffs' complaint in the district court, upon defendants' motion filed prior to the answer, was dismissed for failure of the complaint to state a claim upon which relief could be granted. Plaintiffs appeal from this ruling. We reverse in part.

Plaintiffs alleged in their first and third claims for relief that the defendants were negligent in failing to install tempered safety glass in the door and in not marking the door to dispel the illusion of openness which the glass created. Plaintiffs further alleged that the minor plaintiff suffered damages as a direct and proximate result of such negligence. Proof of negligence requires that 'there must be a duty imposed by law and breached by defendant with resultant damages . . ..' Roessler v. O'Brien, 119 Colo. 222, 201 P.2d 901. The question is therefore framed: Was there a duty on the part of either defendant toward the plaintiff? The finding of such a duty requires application of the established doctrine of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, to include acts of a builder or remodeler of a structure on real property.

Justice Cardozo's opinion in MacPherson emphasized that tort liability may attach irrespective of contractual relationship. Hence the duty necessary to support a finding of negligence may be shown without regard for the antiquated concept of privity. In Justice Cardozo's words:

'If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully . . .. There must be a knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract . . . but, it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow . . .. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put its source in the law.'

Colorado cases demonstrate an acceptance of the MacPherson view of tort duty with no express limitation that such duty is imposed only on manufacturers of chattels. The Colorado Supreme Court has held that, in matters of negligence, liability attaches to a wrongdoer, not because of a breach of a contractual relationship, but because of a breach of duty which results in an injury to others. Lembke Plumbing and Heating v. Hayutin, 148 Colo. 334, 366 P.2d 673. In another case, where a family was injured and one child killed as a result of carbon monoxide poisoning caused by a defective furnace and heating system, our Supreme Court allowed a recovery against Public Service Company for negligence in inspecting the hearing system even though all Public Service Company inspections had been made at the request of and during the residency of a previous owner of the house. DeCaire v. Public Service Co., Colo., 479 P.2d 964. This case held that since it could be anticipated that someone else might be occupying the premises in the future, and since the unsafe condition remained, there was no reason to limit the tort liability of the company to the parties requesting the inspection. The concept of tort duty therefore is not restricted by that of contractual privity, but is there a need to limit this concept to manufacturers of chattels?

The courts that have not accepted the MacPherson view of tort duty as to structures upon real estate generally have held that the liability of a contractor should be premised upon the early common law rule as stated in Ford v. Sturgis, 56 App.D.C. 361, 14 F.2d 253: 'the negligence of a contractor in constructing a building will not render him liable to a third person, who is injured in consequence thereof after the work has been completed and accepted by the owner of the building.' Aside from the technical requirement of privity, the reason given for such a rule is that there would be endless liability for the contractor or builder if liability did...