Johnston v. Long

California Court of Appeal Jan 27, 1943 No. Civ. 13694Published

Before: Wood (Parker)

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Holding. The court held that the trial court abused its discretion by sustaining a demurrer without leave to amend, as the plaintiff should have been granted the opportunity to amend the complaint to allege facts bringing the case within the exception to the general rule of contractor non-liability for completed work.

Issues

Whether a contractor is liable to a third party for injuries caused by defective work after the work has been completed and accepted by the owner.
Whether the trial court abused its discretion in sustaining a demurrer without leave to amend when the plaintiff did not explicitly request leave to amend.

Disposition. reversed

Quotations verified verbatim against the opinion

“The general rule with respect to the liability of an independent contractor for damages to third persons caused by defective construction is that, after his work is completed and accepted by the owner, he is not liable to a third person”

“An exception to the general rule is that the contractor is liable if the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons”

“In the present case, involving an overhead door and its lifting apparatus, the appellant should have been given an opportunity to amend his complaint to meet the requirements of the exception to the general rule.”

WOOD (Parker), J.

Plaintiff appeals from a judgment in favor of defendant, San Diego Planing Mill, entered after said defendant’s demurrer to plaintiff’s complaint was sustained without leave to amend.

There were four alleged causes of action. The first cause of action was in substance as follows: that certain defendants, as individuals, owned a certain building in San Diego in which they conducted an automobile agency, and in connection with said business they purchased gasoline and received delivery of the same in the building; that plaintiff was “a tank-truck salesman and made deliveries of gasoline ’ ’ at said premises for use in said business; that such deliveries were made in the building through an entrance in which there was a large overhead lift-type door, operated by a lifting apparatus attached to the door; that plaintiff, with the ac

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quiescence of defendants, used such entrance when entering and leaving the building in making deliveries; that on December 12, 1940, defendants negligently kept and maintained said door in an unsafe condition, which condition was known to the defendants but unknown to plaintiff; that on said day while making a delivery of gasoline to defendants, plaintiff raised the door and it fell and struck plaintiff on his head, causing serious bodily injury.

The second cause of action was the same as the first except it omitted the allegation that defendants negligently kept and maintained the door in an unsafe condition, and alleged that said defendants, the “land-occupiers,” as individuals, employed respondent, San Diego Planing Mill, in October, 1940, to repair said door and its lifting apparatus; that respondent, acting within the scope of its agency, did repair the door and apparatus in such a negligent manner that it was unsafe to use; that such unsafe condition was known to all of the defendants but was unknown to plaintiff.

The third cause of action was the same as the first cause of action except it omitted the allegation that said defendants (other than this respondent), as individuals, owned and conducted the business, and alleged that said defendants (other than this respondent) were copartners in conducting the business.

The fourth cause of action was the same as the second cause of action, except it was alleged therein that defendants (not including this respondent), as copartners, employed respondent to repair said door.

Johnston v. Long

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