Mallow v. Tucker, Sadler & Bennett, Architects & Engineers, Inc.

BROWN, P. J.

This appeal follows a wrongful death action brought by the heirs of Paul Ed Mallow, a workman killed while employed on the job by defendant, R. E. Hazard, Jr., Inc. (Contractor) as it remodeled a motel on the premises of defendant Camino del Rio Properties, Inc. (Owner). Defendant Tucker, Sadler & Bennett, Architects and Engineers, Inc. (Architect) independently contracted with Owner to act as the architect for this construction project. The workman was electrocuted while jackhammering footings in the ground at the place called for by Architect’s plans; the jackhammer broke into an underground high-voltage transmission line.

The complaint alleged (1) negligence of Owner in failing to make the premises safe for decedent’s use and a failure to warn of known danger, and (2) negligence of Architect in failing to warn of the existence and location of the high-voltage line, specifically, by not showing it on the plans it prepared for the construction.

Architect cross-complained (1) against Contractor and Industrial Indemnity Company, the workmen’s compensation carrier for Contractor (Insurer) , (a) alleging the negligence of Contractor and Owner in failing to warn decedent so as to defeat Insurer’s subrogation rights to the workmen’s compensation death benefit, and (b) for indemnity; and (2) against Owner (a) for indemnity, alleging the architectural services “did not include any work in connection with said electrical conduit,” and later amending this to the theory that Owner breached its contractual duty to inform Architect of the underground conduit, and (b) for indemnity, alleging a negligent failure to warn the workman.

Owner cross-complained for indemnity (1) against Architect and Contractor, alleging their negligent failure to warn,

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and (2) against Insurer for the death benefit paid because of the insured Contractor’s alleged negligence.

Contractor cross-complained for $6,705 against Architect and Owner for negligent failure to warn Contractor of the danger; the damages represented the money Contractor was required to spend to repair the underground transmission line and to provide replacement electrical current until it was repaired.