ABC Builders, Inc. v. Phillips

BUILDERS, INC., Corporation, ABC (Defendant),

Appellant Sheridan, Wyoming, a Munic City of (Defendant),

ipal Corporation

v. Cynthia and

William H. PHILLIPS (Plaintiffs).

Phillips, Appellees

No. 5468 Cynthia H. PHILLIPS and

William (Plaintiffs), Appellants

Phillips,

v. BUILDERS, INC., Corporation, and

ABC Sheridan, Wyoming, a Mu (Defend Corporation, Appellees

nicipal

ants).

No. SHERIDAN, Wyoming, a

The CITY OF Appellant Corporation,

Municipal

(Defendant), Inc., Builders, Corporation

Abc

(Defendant),

v. Cynthia and PHILLIPS H.

William (Plaintiffs). Appellees Phillips,

No. 5470 Corporation, BUILDERS, INC., a (Defendant

Appellant Plaintiff),

Third-Party Virginia R. R. RASTER

Kenneth wife, Appellees Raster, husband Defendants). (Third-Party SHERIDAN, Wyoming, a OF

The CITY Gary

Municipal Corporation, N. Benson Benson, Betty husband Ann Defendants), (Third-Party

wife Cynthia H. PHILLIPS and

William (Plaintiffs).

Phillips

No. 5484

Nos. 5468-5470 Wyoming.

Supreme Court of 13, 1981.

Aug. Healy, Kennedy,

Stuart S. Connor & Hea- Sheridan, ly, signed appeared the briefs and argument in oral on behalf of ABC Build- ers, Inc. Schwartz,

Harry Sheridan, F. signed the and appeared argument brief in oral behalf of Sheridan. George Andrews, Andrews, S. Andrews & Riske, P.C., Cheyenne, signed the brief on curiae, County behalf amici the Sheridan of a residence at for the construction permit Board Wyoming and the Realtors Board of known as in a subdivision Kelly Drive Realtors, position support picked lot particular Acres. Sheltered Builders, Inc. at the toe of home was situated for the new Shoumaker, Badley, Rasmussen K. Micheál work was nec- excavation a hillside. Some Sheridan, the briefs Shoumaker, signed & two-story house into the fit the essary to argument on behalf appeared in oral and residence with The final result was a hill. Phillipses. facing first floor east at the front of the Gonda, Sheridan, signed the Jeffrey J. level, house at the back of the street while of the Rasters. brief on behalf floor was subterranean. the same 24, 1969, August the house was sold On RAPER, ROSE, J., THOM- Before C. and Virginia Kenneth and Raster by ABC to BROWN, AS, JJ. ROONEY Rasters (Rasters). During the time the home, patio a to the they added owned RAPER, Justice. which was all above the second floor rear of used of new and liability of vendors The roof and addition included a ground. This damages arising out property for residential The earth taken storage shed. an attached will building site location dangers of patio was used ground for the to level the opinion. subject of this primary be the so side of the lot leveling out the south jury verdict arise from a appeals These Mr. driveway could be installed. that a a holding developer-builder-vendor perforated added a four-inch Raster also damage to and thus liable for city negligent downspout patio off the pipe from a drain will resulting a landslide. We house from adjacent lot which drained into roof 1) effect of major issues: address four purchased also the Rasters had which of an interme- district court’s dismissal drain as it will later discuss this We ABC. may have con- diate owner whose conduct liability of the vendor relates to the damages, the build- between tributed of a used residence. sale damaged by er-vendor and ultimate owner conveyed 1971 the Rasters August In landslide; 2) whether a builder-vendor Betty Benson Gary and property to by can be liable reason made no altera- Bensons (Bensons).1 The selecting upon which to build the site They sold and trans- to the structure. tions sale; 3) point in time home for from what Cynthia home to William ferred the to run when the statute of limitations starts June, Up until (appellees), in 1977. Phillips negligent based a suit is maintained voiced about only complaint May, selection; 4) if sufficient evidence site year last during the house was that municipal liabili- presented to establish it, some mi- there was owned Bensons loss to to the ultimate ty for contribution back wall water from the seepage of nor failure to because of a the final owner being caused floor identified the first drainage ditch. maintain time of pump. At the sump a defective We will affirm. Ben- appellees, the the Bensons to sale carpet which water-stained replaced

sons resulted; May of 1978 then in but had I falling. heavy began rains rise and fall of a case concerns the This office at Weather On November National Service house located in Sheridan. officially re- County airport 14,1968, Builders, (ABC) obtained Inc. the Sheridan the month inches of rain for 6.80 (City) corded from the Sheridan they added the appeal. mistaken belief parties to this 1. The Bensons are not downspout patio asserted con- which ABC Summary judgment granted in their favor resulting instability ground in a tributed indicated at the time its and counsel for ABC thoroughly will be discussed granting summary judgment the Ben- landslide opinion. concern, apparently because this not a sons was place they joined first under had been May left the home on when May, 1978. This was. 4.35 inches above the realized average amount of rain for the month. sliding the hillside behind them was down daily However, pushing against breakdown shows that most of the house. during spells. the rain fell wet Phillips during two Mr. returned next week one began May through first 3 and lasted short respite rainy periods. between the rainfall, May daily almost 2.23 With Efforts were made to save residence during of precipitation inches was recorded digging trenches around its foundation. period. But, proved The rain then until abated useless the return to May during ensuing four-day May when wet weather on 16. All Phil- that the period, lipses another 3.78 of rain was re- inches could do was to find a house mover floor, corded. top subsequently who saved the moved elsewhere and used the construc- leak- appellees first water The observed of a tion new residence. ing May 7. into the first-floor bathroom displacement following clarify day, slight The next illustration slippage destroyed the home’s noticed. With hillside foundation was how fall, Phillipses continuing the rain house: 19, 1979, September On the appellees as the Rasters summary the Bensons

plaintiffs against judgments filed action ABC on and dismissed them warranty both and negligence theories. case. As we reach issues related to When the district court dismissed case developments, these we will set out other claiming run, the statute of pertinent limitations had facts. Phillipses appealed. appeal In that remanded, court reversed and holding the proceeded case to trial on September applicable then statute of limitations uncon- 18, 1980. It was submitted to jury only Phillips Builders, Inc., stitutional. v. ABC on the negligence claim. On the verdict Wyo., P.2d form the jury was allowed apportion among ABC, of Sheri- court, Back in district impleaded dan, Rasters, City, appellees, and the and the Rasters. Bensons. How- ever, court, trial, district before granted up negligence: divided Builders, Inc., “ABC 80_% “City of Sheridan Phillips H.

“William Phillips Cynthia

“Kenneth Raster Virginia R. Raster S3 hill, gave further found that him no concern. He was $40,000. damages totaling had sustained content with the soundness of the house Accordingly, judgment was entered and the itself and any never noticed it had structur- appeals various here al problems, involved ensued. never had leakage

into the lower any cracking section nor displacement of the foundation. Before II putting tile, patio drainage there The first issue we consider concerns the spot was a low at the rear of his lot in district court’s dismissal of the Rasters which water would accumulate. He was from the case. The Rasters moved for very much satisfied with the house and judgment summary pleadings based on the any never problems. had water or other depositions respon- taken. filed a Bensons, ABC The Rasters sold the house to the principal sive of one of its owners any affidavit unaware of difficulties about which a setting generally warning that at time the out should issue to the Bensons. built, ground home was was stable and proper drainage. the lot contoured for He hearing on the mo- close of the At the soil, observed the removal of the addition of judgments, the trial summary tions patio, drainage ground. roof into summary judgment in favor judge granted home, He also observed above the about 200 Rasters, following com- with the of the west, by feet a ditch built and maintained ments: clogged by roofing pa- which was “Now, summary judg- regard weeds, cartons, sacks, cement

per, milk of the Rasters. I ment filed on behalf debris, causing sticks and other the water to interesting points think there are a lot of property. appellees’ accumulate above the Healy certainly Mr. questions; engineer The affidavit of a licensed good job presenting his has done a by also furnished ABC which concluded viewpoint why they should remain ground which caused the failure suit, is unable to come this but the Court collapse appellees’ by was created home liability up any theory with on their City’s drainage by ditch and the Rasters any parties here under the part to of the adding more water to the the drain- soil Further, doesn’t existing law. the Court age from west of the house and roof Builders where the defenses of ABC see patio ground through pipe into the drain way by changed any or harmed in will be downspout which received the water from a If this is to be removing the Rasters. part patio. added as a part negligence question submitted —the deposition comparative Mr. Raster’s was to the effect the case—submitted necessity of escarpment2 upon negligence, why, that while there is no there photos long steep slope separating area Webster. This definition fits 2. A cliff or two comparatively gently sloping or above the residence. level more sur- resulting faulting. faces and from erosion or position did not resist of ABC that parties being there to have the patio drainage their installation of the assign any percentage them landslide, system though contributed to the portion; so the Court developed by deposition from the evidence doesn’t see how Builders can be hurt heavy and at trial the rains and accumula- in this matter. The Court doesn’t see City’s drainage tion of water in the ditch any duty where there was on the Rasters principal causing were the factors in the suit as it now stands as a matter of ground give way. expert Some law, so going grant the Court is testimony at the trial was to the effect that summary judgment motion for also. I downspout pipe and drain no effect will ask both of the successful counsel in catastrophe. at all on the prepare proper these motions to order and to Healy submit to Mr. for his judge The trial was correct perusal okay as to form.” granting summary judgment for the Rasters. charged neg The Rasters cannot judge While the trial announced ligence for a condition to which that the anyone Rasters had no as a by knowledge warning were not alerted matter of undisputed law under the facts part may even if some act on their him, before the form of summary judgment ground contributed to the failure of the presented signed to him and ap which he underlying question. the house in As said pears to be carelessly drawn and only stated Prosser, (4th Ed.1971) Law of Torts granted because, that it was “there exists p. upon negli a cause of action founded no material regarding issue of fact gence from will follow is Third-Party claim of the against Plaintiff based a traditional formula: Third-Party Defendants, Mr. and Mrs. duty, obligation, recognized “1. A proper Raster.” A summary judg form of law, requiring the actor to conform to ment must finding rest on a dual that there conduct, a certain standard of for the genuine was no issue as material protection against of others unreasonable fact and prevailing that the party was enti risks. tled judgment to as a matter of law. “2. A part failure on his to conform to Meuse-Rhine-Ijssel Cattle Breeders of Can required. standard These two ele- ada Ltd. v. Corp., Wyo., Y-Tex 590 P.2d go ments up to make what the courts (1979). 1306 We have the duty same as the usually negligence; have called but the judge trial and consider motions for sum quite term frequently applied is to the mary judgments though as originally may second alone. Thus it be said that presented to us. Weaver v. Blue Cross-Blue negligent, defendant was but is not Shield, Wyo., (1980). 609 P.2d 984 may, We liable because he duty was under no to therefore, and do correct shortcomings plaintiff not to be. of the order as to entitlement as a matter “3. A reasonable close causal connection of law. between resulting the conduct and the It would appear that at the time of injury. This is commonly what is known granting cause,’ summary judgment ‘legal as ‘proximate the Rasters cause.’ 3. The court made further Healy. feel that this suit been shown duty thing; the lapsed cause this but I don’t think that makes them “THE regard: differently, trial not to have built a —for COURT: I I there’s at this really that patio lack of a better word—was be- to the etc. didn’t the reason any liability was built and all that sort of time. Now, you may Court that mean all patio I have said pertinent rulings that it’s don’t feel in the Rasters in the house col- or to have built they that. that, prove I don’t any Mr. at bution is that think there is far as client as Rasters to ABC Builders.” “THE COURT: No. I think as far as contri- tion of the not it I’m liable to certainly sure that can be they way. ^[*] your anyone to whether or not there were concerned, As the case now client is implied warranty would have a ^[*] any right negligent as this case now ^[*] concerned. litigated I’m of contribution of the ^[*] apparently ruling bearing causation, stands, in this case as or whether or ^[*] was a viola- stands, on ^[*] I don’t your etc. but on of an chasers of a residence the basis damage resulting loss “4. Actual implied warranty concluded that another. Since action the interests negligence chiefly buyer rely on of the build negligence developed out of could for case, er for as well. The reasons for form of on the recourse the old action action, such a the rule of that such rule rest fact that retained damage proof part position superior was an essential builder is in a knowl edge; plaintiff’s damages, building case. Nominal is his business. Much he not right, sight, cannot re- what does is concealed from vindicate technical be action, inspection. And, in a no as a mat negligence covered where discoverable public has ter of should not be policy actual loss occurred. threat of builder harm, realized, concept under yet is not relieved of future Negligent equitable it is assess the builder4 enough. conduct itself more defects latent not such an interference with inter- losses attributable he In this court large of the world at there is which has created. Tavares ests it, buyer not be right to or to free also held that should any complain of be it, contributory except charged negligence in the case of some indi- with as part of negligence over vidual whose interests have suffered.” barn added.) alerted (Footnotes emphasis septic drain field when not omitted and tank warning, citing v. by proper Brubaker Glen Summarized, essentials Fel Lodge rock Order of Odd International duty part are a of a defendant and a lows, Wyo., (1974). 526 P.2d perform duty which proxi- failure plaintiff. mately damage caused hardly expected can Brown, Wyo., Danculovich 593 P.2d 187 home any Rasters were more than the usual buyers position appellees. in the same as many as We are with number one of It was for them to do concerned reasonable do, Rasters, im summary. buyers Prosser’s as new homes add on and Did the with owners, improve did any prove. intermediate to con- Here all patio storage shed form to of conduct toward of a standard construction residence; and, act purchasers appearances if which to an innocent future all have, so, knowledge what was that standard? We absence of Horstman, Profession Wyo., category. 1275 removes it from that Tavares P.2d Builders, are (1975), builders vendors Moxley developers v. Laramie al and, sale, subject Inc., Wyo., (1979), posture P.2d 733 held devel- different of the sum- opers-builders-vendors responsible pur- to to different duties. record involved, justifying support risk rea- should realize the and has 4. This reason in of a rule binding developers dis- land builders son that the vendee will not and is excel- to believe 2, 383, 391, lently summarized in 25 A.L.R.3d or risk. Re- § cover the condition statement, realize the said: where is § Torts 2d 353. “Similarly, “* * * of it has been the trend said that decided trend of modem deci- [T]he judicial is the doc- recent decisions to invoke respect sions is to make with to a distinction warranty implied in cases trine of fitness of a vendor who is also the builder of a new builder; involving new sale of houses the structure, and that where the vendor is also emptor not builder, that old rule of caveat does the today, by weight the he is the of cases; justice satisfy demands of in such the authority, damages modem held liable every- purchase that day of a home is not an injuries the occurring and after the surrender of average family, for the and transaction possession, title and one or more on of three many important (1) (2) is the trans- implied warranty; instances most theories: nently dangerous an immi- by negli- lifetime; apply and the action a that to caused condition emptor inexperienced construction; (3) rule buyer, to an gence concealing of caveat and or daily who is failing any in favor of builder to disclose to his vendee condition building engaged sell- business of persons involves to which unreasonable risk houses, manifestly justice.” ing is a denial on the land if not or the vendee does know omitted.) (Footnotes the reason to know the condition of have (1980) Property See on risk involved has also 6A Powell Real and the vendor knows or condition, 938.1, seq. reason to know § of the realizes or et mary including question judgment proceedings, ma- of law to be determined the terials considered and even the trial tran- Wagner, Wyo., v. Van court. Medlock script, fails to disclose that the Rasters appeal gives P.2d 207 This us a known, prudent knew or should have vehicle to determine and announce the homeowners, lurking above home their responsibility standards owners slope, liable to move was an unstable original than other the builder-vendor for down and buckle the if land under them occurs, damage which such as in this case they ground should drain into the appellant where the to builder sold built, patio they endanger from a Rasters, ap- then the who sold to Bensons stability their home and dam- cause pellees ultimately who suffered. age any to buyer premises. future implies obligation While the law an on private vendor, In sales between not a part convey of vendor to a marketable builder-vendor, vendee, ordinarily and a title, yet respect condi- physical with to greater vendor has in determining no skill premises tion of the the traditional view quality than has vendee and are in (let emptor had been the rule of caveat equal bargaining position. an Waggoner v. buyer beware) Inc., applies except, because Development, Midwestern infra. developments of modern in the law with On other hand the record con- has respect housing to new built for sale appel- evidence in it show siderable to Am.Jur.2d, failure to disclose defects. 77 City lants ABC Builders Sheridan 329-336, Vendor pp. and Purchaser 492- §§ knowledge had extensive or should have 496. This court has observed that harsh known of the unstable ground above the emptor undergone rule of caveat has testing laboratory residence. In did softening literally ap- and has been never drilling engineer core and the for the plied jurisdiction. in this Tavares v. Horst- studied the area connection with man, supra. appears us that request of open street ABC Builders Restatement, sets rule of Torts 2d a fair question. about 200 feet above the lot A duty applicable upon study further similar the homeowner re- was done in 1968. findings Their resulted in the sale: conclusion open was not feasible to the street “(1) A vendor of land who conceals or because of instability ground on fails to disclose to his vendee condi- the hillside which would have necessitated tion, artificial, or whether natural retaining construction of wall. It was persons involves unreasonable risk to concluded that the whole area in vicini- land, subject ty upon of the street which the house in vendee and others the land with the question up backed problems had actual or consent of vendee his subvendee instability. record clear that physical harm caused the condition appellant had knowledge prob- full of those possession, after the vendee has taken if building lems before in the area because “(a) the vendee does know studies persuasion. Ap- resulted from his reason to know of the condition pellant problems had water involved, risk and

the vicinity engi- and was through advised “(b) the vendor knows or has reason to neering to counsel install drain tiles around condition, know of the and realizes or carry accumulating houses to off water in involved, should realize the risk and has the sites. From the evidence in record, to the reason believe that the vendee will not only pertaining not to the sum- trial, mary judgment but also at the Rasters discover the condition or realize the risk. have, reasonably did not nor can it be “(2) actively If the vendor conceals the expected under the circumstances disclosed condition, liability the stated in Subsec- they had, that knowledge. this same (1) tion continues the until vendee dis- This recently court has said that the mat- has opportunity covers reasonable ter of a duty whether of care exists is a precautions against to take effective it. application In of 353 of the Restate- only the liability § continues un- the Otherwise oppor- ment, had can no of a supra, vendee has reasonable we find violation til the to the to tunity appellees. They, discover condition duty the Rasters to the (Emphasis add- precautions.” therefore, take such not names were actors whose ed.) on verdict appeared should ever the pur- were form. All the vendees innocent the comments the It can seen when Rasters and Bensons chasers and the judge at the time he ruled the trial sold, they were vendors. As an innocent summary judg- on Rasters the motion for aside, we note that the never did ment, that he but not or could sensed would against the they any assert had claim rule; upon express not this as the the Rasters. of the him the basis information before summary judgment, properly he

motion having duty no to the The Rasters duty resting with held there was no them appellees, liability appellees’ had no to share appellees, buyers, the nor to toward their against the loss claim with ABC. ABC’s showing is ABC Builders. There no the language Rasters is for contribution. summary or even in judgment materials W.S.1977, l-l-HO(a), speaks for itself of § proceedings that the Rasters concealed trial clearly excludes regard in that or failed to disclose to Bensons condi- Rasters: tion of which knew or had reason to “(a) provided in Except as otherwise unreasonable know constituted 1-1-113, through where W.S. 1-1-110 patio land underlying risk or from persons jointly or (2) two or more become appellees as drain to the Bensons and the injury the same severally liable tort for any Nor was there reason the subvendees.6 person property or for same or vendees, Bensons, shown that knew death, right wrongful there is a of contri- any know of condition or or reason to among though judg- bution them even noted, did unreasonable risk. As not against not been recovered all granting does not now contest of sum- ment has mary judgment any or of them.”7 Bensons.

5. The adopt opinion: only “§ “The word ‘actor’ is used statement of this subjecting another in a cause of the actor’s statement of this does not to another to whom the and that actor’s conduct “The word “§ “§ throughout or injury to denote “The sonable man so to believe. a given to this rule but as 3. should 4. precluding person Restatement, particular ^[*] words sustained Actor Duty Reasonably fact or combination of facts actor whose tortious do so he becomes following the circumstances which the fact know, him to ‘duty’ whose the Restatement of this ^[*] ‘reasonably him from manner at the risk is a required are such as to cause a rea- Subject liability is used Torts Subject ^[*] conduct definitions such Believes injury. legal otherwise the actor believes that 2d contains He other, conduct throughout throughout cause. toward recovering against to conduct himself to denote the fact believes’ subject is in designate is owed for pertinent ^[*] of which that used question another, is a he are and we Subject ^[*] the Re- the Re- knows, exists, either legal if he use as 6. A 7. This section page 236. before the form Chapter Restatement, 1977. 110], Chapter throughout duty fact intelligence tion from which prudence conduct to denote the fact that a throughout actor would ligence exists. exists, “(2) “§ “(1) subvendee denote 12. Reason to Contribution The words ‘reason It 67, or that such originally another, question upon the fact that the actor has informa- legislature tinkered with the Uni- assumption words Session Laws Torts 188, is infer that intelligence or of the derived one to Restatement Restatement or would Act in Session read: superior person ‘should assumption 2d, Know; actor person whom a its person of would ascertain performance to know’ are used of Laws of govern revision, Should Know intelligence such know’ would fact reasonable Wyoming, of this of this 1§ Comment that such vendee fact exists.” his conduct reasonable govern Wyoming, [l-7.3(d)], are 1§ question superior Subject Subject of the [1-1- intel- 1973, sells. used fact (a), his his 934 the verdict form of

The are not tortfeasors. A tort- determination Rasters percentage feasor of wrongdoer; negligence.9 is a one who commits or guilty Dictionary, is of tort. Black’s Law judge Since it was error for the district Edition, Generally speaking, Fifth 1979. form, include the on Rasters the verdict attempting and without an all-inclusive def- does that constitute such error that we inition, meaning a tort has similar to reverse must and send the case back for a wrong injurious is an unlawful act to new trial or was the error harmless? Rule another, independent of contract. Price v. 7.04, W.R.A.P., error, “[a]ny declares that Commission, 385, Highway Wyo. State defect, irregularity or does variance which 396, 309, (1946). being 167 P.2d Not rights not affect substantial shall be disre tortfeasors, liability no ei- Rasters had garded.” While it was not a function of the jointly severally ther or law, to make determination of injury appellees’ property and therefore its of finding negligence zero as to the contribution, liability had no to ABC for Rasters it arrived finding at caused though may even unconsciously have the ultimate outcome of case in the may created a condition which have judgment contrib- court’s final on the verdict to be uted to appellees’ loss. though correct. The result was the same as the Rasters had not been included on the Since the were negligent Rasters not as 7.04, adoption verdict form. The of Rule properly summary judg- determined W.R.A.P., 49, W.R.Cr.P., taken from Rule ment, their names should never have been 61, W.R.C.P., procedural and Rule it on the verdict appellees’ form as actors did not alter or diminish the substantive loss. liability grounded No be negli- can on Wyoming law of previously as it existed gence part if no exists on the anof merely declaratory principles old of individual. v. Maxted Pacific Car & Found- State, Hays Wyo., of law. v. 522 P.2d 1004 Co., ry Wyo., (1974); 527 P.2d 832 Guinand (1974); Highway Robertson v. State Com v. Atlantic Richfield Company, F.2d 414 mission, Wyo., 450 P.2d 1003 (10th 1973). Cir. Once has been deter- person mined that a has no in con- An error to warrant reversal must occurrence, nection with the no prejudicial reason re- be and affect the substantial mains person’s for that to appear rights name appellant. Tompkins of an Byrtus, “(d) through participants As used in “All sections 1-7.4 1-7.7 to the transaction statutes, ‘joint joined tortfeasor’ means one should be in the action. will This persons jointly severally two or more judicial or encourage economy lia- because other injury person ble in tort for the same or wise result reached the case not property, judgment whether not has been given estoppel be collateral effect and there against all recovered necessary.* * *" them.” might fore a action be second legislature ordinarily change should language and format of uniform acts unless designation “participants” above and on change some substantive is desired and intend- used; p. not well it should 1188 of Ridenour is deprives ed. users of and threatens ben- special has a have been “actors" which mean- efit jurisdic- of authorities available from other adopt- ing in as we herein the law torts have any pre-revi- tions text sources and even Restatement, ed set out the definition as interpretations sion this court has made. This 2d, supra, opinion. Torts of this particular fn. 5 Ridenour change appears to have been unnec- 3, February and, trial of the essary decided serious, required while not addi- starting Septem- us was held case before now tional search and definition. 1980, 18, “partici- ber so use of the word actor, 5, opin- 8. See definition of footnote pants” case should not misled ion. judge. trial also, Brown, Wyo., See Beard v. 616 P.2d 726 9. This statement is not intended to include where, (1980) case, appropriate in an an em- person plaintiff, who has settled with a as in ployer’s percentage should in- County County Board of Commissioners though employer cluded is covered Campbell Ridenour, Wyo., 1174, 623 P.2d compensation. worker’s fn. where it was stated as a matter public policy that:

935 question supra, this court did not reach the (1954); Day v. 537, 753 267 P.2d Wyo. 72 building only unsafe sites but discussed 515, (1934); of Smith, P.2d 786 Wyo. 46 30 provide of builders-vendors Gray, Bank of Wheatland Stoekgrowers’ negligent design free from habitation no 18, (1916). Where 24 154 P. 593 Wyo. Though we also held that construction. errors will appellant, to an injury resulted by a of homes of a new house builder sale court, by this Jenkins be overlooked implied warranty that carries with it an Cheyenne, Wyo. (1876). 1 While 289 reasonably in a workmanlike is constructed cases, the test prevailing rule in criminal habitation, fit for this court manner and cases as reasonably applied in civil can be seeking damages upon the basis approved harmful, well, there that for an error to be warranty or implied of either breach possibility that must be a reasonable Providing goes like negligence. a safe site have might the verdict absence of error There is glove with construction. hand Hos more favorable to a defendant. been liability in the build- nothing unusual about State, (1976), Wyo., P.2d 342 reh. kins v. 552 selling a home built on a site er-vendor for 1390, 553 P.2d cert. denied 430 U.S. denied develops that and it negligently selected 956, 1602, If the 51 L.Ed.2d 806. S.Ct. damage to an danger surfaces and causes of a trial is correct on determination court question which has unwary buyer. It is a White any theory, it will not be disturbed. of courts and text caught the attention District, Irrigation Wyo., v. Wheatland gone off in different Courts writers.10 P.2d 252 liability damages reaching directions how the out We cannot visualize sites, includ- unsafe arising out of of this ease could have been dif come deceit, and warranty, fraud and ing implied It it was. jury’s ferent with the verdict as negligence. however, if story, would have been another Develop- Waggoner v. Midwestern In example, the jury had decided that for Inc., 57, ment, 154 N.W.2d 83 S.D. negligent. In that Rasters had been 10% (1967), held that builders-vendors it was event, appellants, the other of the one or fault on irrespective of could be held liable may have City, or the out one holds himself the basis that where prejudiced because it would become been particular of a qualified perform work would then speculative as to whom the 10% character, warranty that implied there is stands, with assigned. As the case now reasonably structure would be completed possi no being the Rasters nonactors with purpose. In that case the intended fit for liability, the outcome is the same as ble heavy May were also rains there though been on the their names had not seeped June, water water table rose and verdict form. causing per- cracks into the basement the struc- of water into mitted infiltration Ill ture. next issue for consideration is wheth- Dodenhoff, 254 S.C. Rutledge v. duty upon er there is a ABC as a builder- In septic (1970), placement of a site for 175 S.E.2d vendor of homes to select safe high presence system in- tank question There is no such construction. which caused it to over- a factor appellees are not table was appeal volved in this homes, particularly up into flow and back original buyers. If a builder’s decided The case was during weather. exists, subsequent purchas- wet exist for it was implied warranty, Builders, Inc., su- on the basis Moxley v. Laramie ers. builder was liable. issue. The claim of the held pra, settled not on and builder are purchaser presented as a held appellees was is at the Horstman, footing purchaser equal negligence case. In Tavares v. Facts, POF2d) p. seq. (12 et dangers Second discussion of the 10. An excellent Am.Jur., property appears in 12 Proof location 936 Bethlahmy cially anyone particular the In built for in but for

mercy of builder-vendor. Bechtel, 55, (1966), 91 415 v. Idaho P.2d 698 heavy during There sale. were rains the placed pipe the builder tile in and covered large early winter sufficient to cause a garage up irrigation an ditch and built a quantity away and rock earth to break season, top. During irrigation over the the and cliff behind the house slide through and water came the concrete floor plaintiff’s patio. yard into back and complaint, seeped into the basement. After Later, subsidence the filled land occurred the builder rerouted the ditch around the causing many places, to sink house at through pipe lot sealed tile but the water part drop one seven inches and the over problem high continued to a ta- due away pipe house to break from the sewer vicinity irrigation ble in created sewage permitting the accumulate ditch. The court there went so as to far ground around the home. The defendant hold there was fraudulent negligent constructing was held concealment. The defendant was held dwelling compacted upon improperly an lot. position superior have' dealt from a pertinent Another California case is of knowledge and length. not at arms Bull, Conolley In interest. v. 258 Cal. Nevada also adheres to the that a rule 183, (1968), App.2d Cal.Rptr. 65 689 builder be held liable for of an sale defendant, speculator, built a real estate building Village Develop unsafe In site. ground. sloping sale house on The owner Filice, 305, ment v.Co. 90 Nev. P.2d 83 526 adjoining property him that advised (1974), developers court held that awas slide area because one had occurred superior with knowledge had failed to warn property on his some time earlier fur- the buyers of the lot Lake Tahoe report engineer’s him with nished an indi- basin being risks associated with it cating underground of sub- movement plain stream, the flood of a mountain surface water slides caused to occur though they buyers planned knew the The plaintiff. area. house was sold to La- They build. were liable negligence thus during night raining, when ter while it the home that was was built was de stroyed by mud, property flow of water landslide occurred behind carrying trees and other interesting debris. the house was almost lost. court The af- note 353, that this court utilized Restate develop- firmed trial court and held the ment, 2d, Torts supra, to hold vendor er accountable in a action for liable, knowledge because of its of the risks investigate to carefully failure the condition involved where the vendee dis would not of soil before lots. hillside cover the condition or realize the risk. The land Develop involved Westwood Wisler, 21, In Sabella v. 59 27 Cal.2d Company Esponge, Tex.Civ.App., ment Cal.Rptr. (1963), 377 889 P.2d an old (1961), 623 used S.W.2d had been as a quarry pit years was used over the sanitary garbage dump. landfill dumping trimmings cuttings and Thereafter, tract was similar waste matter. owner contract- development located was subdivided and filled, ed to have it covering over the waste defendant, developer, homes built as a with earth. The fill material and dirt were being one plaintiff. with sold to the A dumped specifi- onto the land without being causing lots, rain heavy fell on the area cally compacted. It did not look filled like including plaintiff’s sanitary over the fill to defendant, land. experienced home considerably. settle The court found de builder, purchased property never but negligent (and fendant guilty also statu attempted nature, to inform himself of the fraud) tory for damages. liable composition or quality of the earth under- appropriately As was said by neath the the court in leaves he saw there. It was Thornton, inquiry found that House and soil tests Wash.2d would have ground (1969), disclosed that slip- for a P.2d 199 in connection unfit building site. spe- page sloping ground house built was not upon which a house mixing judge probably concerned about speculator, by the defendant been built action, following heavy rains: up in the breach of contract course, negligence light potential said to be in the of the lia- “Nothing, of can be dwelling stability than the more vital to a City negli- of the of bility Sheridan When the foundation of its foundation. gence, his view that the Rasters should be cracks, slips, or deterio- of a house shifts compar- determining on the verdict form in person such an extent that a of rates to negligence possibili- ative and the eventual prudence reasonably as- reasonable would problem. is a ty of a contribution There sume that the house is unsafe for occu- question and how it is good as to whether pancy, longer it is no fit for its intended comparative fault be- possible to determine e., purpose, place i. a of residence for the parties guilty when one is of tween two This, course, family. his of owner and guilty another is of breach of contract and danger arises from in- true whether attempt will not to tackle negligence. We which stability of the land and terrain on case, negli- issue in this that the foundation rests or from defects of the case approach became the law gence installation, design, fab- the foundation’s instructions, the court’s all by virtue of There can be composition. rication or negligence. Matter of Estate grounded on plain- which little doubt that the house 842, Mora, (1980); 611 P.2d 846 Wyo., of met this bought tiffs from the defendants Vernieuw, Wyo., 604 P.2d Cox unsuitability. amply test evidence Company, (1980); Gary Foster Lumber supported the court’s conclusion that the Inc., (1975); DeWitty v. Wyo., 531 P.2d 497 cracking sliding, slipping, and of the floors, cracking Decker, (1963), Wyo., foundation and P.2d 734 and our walls, shifting although due decision to affirm. faulty design, not to installation or work- instability recogniz

manship Negligence but rather to the involves upon which ground and terrain danger apparent which is or should be able stood, premises house unus- rendered position of the actor. apparent to one in the dwelling.” able as a 457 P.2d at 203. Allen, Wyo., 574 P.2d Endresen v. case, recog The builder was held liable. this court In that position duty of an actor in nized foregoing appears It from the that there Am. language from 57 by approval of go pursu- are two different directions to Jur.2d, ing developer-builder pp. of new homes for 408^409: Negligence § sale reason of his selection and transfer to the probability injury one “The dangerous building Implied of a site: war- of another is legally protected interests ranty negligence including 353 of the duty creation of a the basis for the law’s Restatement, 2d, supra. appel- Torts foresight of injury, and to avoid such cross-appealed, lees have a con- here but on duty at the foundation of harm lies only ditional basis to be considered negligence. therefore of use care and They argue event we should reverse. stren- is what a negligence The broad test of uously against that their claim ABC should person would foresee reasonably prudent presented have jury been on the basis foresight light would of this do implied contract and were entitled to a Negligence is the circumstances. under directed verdict once it was as knowl- clearly relative in reference to the established that the site was unsta- ap- injury to be edge of the risk of ble. We need not consider that issue * * * The most common prehended. judge present the trial elected therefore, whether negligence, test of negligence, case to the on the basis of wrongful alleged consequences had also claimed various foreseen as reasonably were to be act approved complaint amendments to their coming within the injurious to others against and the ABC Sheridan. range acts.” would be our observation that the trial of such appellees’ We hold this to be of ABC location and was advised to appellees: drainage builders To furnish a safe install tile.

location residential structure geological study reflected what we may be not do so. previously out as profile set raises question about suffi- underground structure. It is stable when ciency penetrates evidence. We but dry hold further when water to the hard surface, supports jury’s clay the record slippery verdict. becomes and the experi- weight ground There is evidence wet surface on the that ABC was an 21% (which grade fairly steep grade) is a enced causes possession builder of extensive it slide of slip plane. to because the It was knowledge about location that the and opinion experts testifying of all that the apparent dangers should have known of was for building site not safe and that a site, building of the hillside as a prudent builder would make site investi- Therefore, have already we related. building gation before and the reasonable uphold we jury’s must determination investigation is inference that such an that ABC was liable to for their dangers would disclose the area. loss we parts since take those evi- The reasonable inferences to be drawn from dence parties most favorable to successful subject testimony on the is that site out leave of consideration the evidence was unsafe and that should been party unsuccessful at arriving this apparent to ABC. Horstman, conclusion. supra. Tavares urges ABC that cause of the loss was Specifically the record reflects that ABC within not the lot itself but from conditions began development of the Acres Sheltered existing area, property. in another not its subdivision, Sheridan, adjacent appel- path The house was built in the of an earth house, lees’ firm 1962. The as builders slide liable to at any occur time. Sub- approximately constructed homes sidence had occurred before with prop- that area several hundred around Sher- er addition of rain accumulated water prior idan to construction of the over house and, again would occur from the evidence which we are concerned. ABC Builders pointing way, appar- should have been owned lots on proposed both sides of a Main responsibility ent to ABC. A has builder appellees’ joined Street extension which lot damage to furnish a safe site whether on the east. urged open ABC to likely to arise within confines the lot up the street for better access into Shel- originating boundaries or forces from be- tered Acres. As a a study result was done yond its limits. Town See Council Town 1968, in 1963 and another in of which ABC Ladd, infra, of Hudson v. where forces knowledge. geological The first was a causing damage plaintiff did take study by Testing Laboratory Northern place on his recovery land and was allowed. core drilling throughout involved the area. we See also cases have heretofore cited One test hole directly west appellees’ damages where occurred from outside property about 200 feet distant. The stu- forces not from within lot itself. dies and conclusions disclosed that informa-, ground unstable, all of which tion IV was available to ABC. sub- Actual sidence which could be oc- observed had The third issue we con consider curred west of property in 1954 and ABC, the statute of limitations. after cerns which should have alerted skilled builder acknowledging court struck down investigation further and care. The special ten-year statute of limitation for president of engineer ABC the city called Phillips improvements property to real about a problem Inc., in building Builders, on the supra, argues that west side of the proposed near four-year extension statute limitation for tort ac-

QSO 1-3-105, W.S.1977,11 Wyoming The rule in has been well set- oper- tions found § cases, Day- Town of tled two Banner v. argu- This appellees’ claim. ates bar the ton, (1970) Wyo., 474 P.2d 300 and Town premised upon correctness ment Ladd, Town of Hudson v. Council of cause of action ac- notion that the ABC’s Banner, 419, P. 703 In Wyo. crues “with the selection designed municipal negligently water line site.” supervision and installed under the of an Housen, Wyo., It was noted in Duke v. began spring leaks in engineer in 1956 (1979), that the statute of 589 P.2d 1964; this court held that the cause of against a begin limitations does not to run did not accrue until 1964 and the action damage has negligence action until some four-year statute started to run dis- occurred, Prosser, (4th quoting Torts damage year. In Town of covery of 1971) 30, pp. 143-144. The court Ed. Hudson, changed the course of a the town noted, further 589 P.2d at the follow- damage plaintiff in 1914. The river ing passage to be a correct summarization thereby occur until flood caused did not of the law: causing waters in 1925cut into a river bank “ * * * rule, general inju- his ditch to cave in. This court held As a where an cause of action accrued on the latter although slight, is sustained in conse- the ry, applicable statute of limita- another, date and the quence wrongful of the act of began run at that time rather than tions to therefor, remedy a and the law affords diverted the river. when the town the limitations attaches at statute of required all the dam- once. It not since no Accordingly, present in the case resulting act shall have ages from the occurred at damage was shown to have time, and the run- been sustained at that reported by seepage the water least until postponed by ning of the statute is not in of if that the Bensons the summer the fact that the actual or substantial instability and not a ground was a result of damages do not occur until a later date. sump pump, the cause of action defective regarded ground The act itself is as the Therefore, not accrue until then. did action, legally not, and is not severable any limitations under statute of could ” * * * case, consequences. from its 51 Am. circumstances shown in this Jur.2d, Actions, 135, p. The running Limitation of until that summer.12 § started 19, 1979, September 704. was commenced action 1-3-105, “(C) injury rights plaintiff, An to the of Section W.S.1977: arising on contract and not herein enu- “(a) recovery Civil actions other than for the merated; and property brought only of real can within fraud; “(D) ground For relief on the following periods after the cause of ac- “(v) (1) year, Within an action for: one tion accrues: slander; “(A) Libel or “(i) (10) years, Within ten a an action “(B) battery; Assault or any prom- specialty agreement or contract or “(C) imprison- prosecution Malicious or false writing; ise in ment; or “(Ü) eight (8) years, Within action: “(D) Upon penalty or forfei- a statute for a “(A) Upon writing, a in contract not either ture, except limitation is if a different express implied; or or prescribed by “(B) Upon liability by in the which the reme- statute created statute other dy brought given penalty; shall be within the action than a forfeiture or “(iii) (5) years period prescribed Within five after the debtor the statute.” Wyoming, establishes residence an action particular claim, contract, not decide whether that foreign judgment 12. We need on a express or seepage proximately caused implied, was or contracted incurred same, any, negligence selecting if and accrued before the debtor became resi- damages Wyoming; to the home dent of site which resulted any “(iv) (4) years, Phillipses Within lived there since four an action for: while the “(A) Trespass upon property; not have real limitations could event the statute of “(B) matters, recovery personal property The or for that would run. In a case in which taking, detaining injuring personal proper- have to be resolved. ty; placement of well within the statute. The district court their foundation. Vincent refusing was the action by appellees correct in dismiss of ABC was Johnston called 1-3-105, W.S.1977, supra. under blockage noticed also because of However, accumulated debris. the evidence

V experts appears all the to be that water grounds appeal its City during prior of Sheridan rains which occurred on the issue standing whether there was time been the ditch substantial on negligence maintenance, evidence its and because of lack of part proximate which was a direct or cause soaking ground, into the and contributed to damage Phillipses’ house. The slippage appel- which occurred behind appellees City claim lees’ home. drainage maintenance of a which ditch drainage ditch was in the nature of located property behind above their on designed by City capture storm sewer the unopened proposed of Main extension carry water runoff the hill behind position Street. The and ABC appellees’ lot property and other below its joined which originally City is that location, acquired by over an easement through neglect City permitted the City expressly that it was states “for trees, clogged growth ditch to become purpose constructing flood drain- debris, collect, causing the water ditch, age and to thereafter maintain the ground soak into the behind the house and quoted same.” substance of the matter thus caused or contributed to the cause of appears at grant least three times the earth collapsed slide which founda- its the easement. tion. The the other takes hand The court instructed the as to the position ditch was blocked City as of follows:

same subsidence the hill behind it that damage caused the to the house. “JURY INSTRUCTION NO. 4 question The ditch in was originally built Plaintiffs, H, “In order for the 1951; William 1968-1970, but sometime between Phillips Phillips, and Cynthia to re- at request ABC, [sic] Mr. Johnston Defendant, cover from the City corrugated 200 feet 24-inch metal Sheridan, Wyoming, their claim pipe on was keep installed the ditch to it negligence, you all of from must find the fol- pinching in. The opening pipe lowing have been was established: directly appellees’ behind the property. negligent “1. The Defendant was Appellant City recognizes the well-known maintaining drainage ditch construct- appellate which already rule we have stated it, by ed in that it failed exercise supreme court must assume that prevent care to the drainage reasonable evidence in favor of party successful creating from ditch an unreasonable risk true, leave entirely out consideration evi- person property of harm to the of one dence of the party unsuccessful in conflict might expected reasonably who be to be give therewith and party successful by drainage affected ditch because of every favorable inference neglect and lack of maintenance. reasonably fairly drawn it. Ta- “2. The Plaintiffs sustained losses which Horstman, However, vares v. supra. it is by were caused negli- the Defendant’s the City’s further claim that once it first gence.” received of the blockage, notice it cleared

out the again clogged, debris when it “JURY

was slippage. because of earth INSTRUCTION NO. 5 The evidence in the sup- record which “Negligence ordinary is the lack of care. ports position appellees when person It is failure of a to do some- do, first noticed blockage, thing ordinary person was that an would about the same time as person doing something noticed dis- act of a or the do, ordinary person that an would not maintainance keep and to them [sic] measured all the circumstances then in reasonable and free of obstruc- repair existing.” tions. It seems to places me that a strict instructions different from those 5 as made We trial court nor were given. cannot find that the City court, Instruction at the close of the City any objections offered Nos. 4 and given by from obstruction repair. of obstruction. liability in “THE ^[14] COURT: will reference I to, just put strike the free example, period after free else, evidence, “Anything Mr. Schwartz? stated: it, “MR. SCHWARTZ: That’s Your Hon- everybody agree “Does there are or.” parties three negligence to whom can be

assigned?” instruction, changed, as apparently court, City objection then satisfied the after discussion because no urging by City, language ABC and made to the instruction up negligence ended with deleted as noted parties judge. consideration for three the trial In- and the non- struction party modify change No. does not finding-of-percentages-of-neg- ligenee portion Instruction Nos. 4 and 5 and at the most is verdict: Plaintiffs ABC, surplusage. (appellees), These instructions City and the Rasters.13 became the Vernieuw, supra; law of the case. Cox v. The City object did to Instruction No. 7 Mora, In the Matter of supra; Estate of as initially presented to counsel at the in- Co., Gary v. Foster supra; DeWitty Lumber structions conference: Decker, supra. “MR. City SCHWARTZ: of Sheridan We, therefore, would determine the object like to case Instruction Num- City as to the 1st, ber 7 for on the basis of following reasons: applied private persons. question the court has No already instructed the and, governmental concerning negligence, immunity was raised in the that the In- City questions trial court.15 The raises struction No. 7 seems to define and make appeal stringent more not raised in the trial court at the ease of the drains; relation to its instructions conference or at the time the primarily but be- there, instructed, cause of phrase having jury namely the last that there is no stated that we negligent liability damages resulting are liable for for from dan acts performance and omissions in the gerous of condition which arises in connection duties, its to exercise reasonable care in operation with the system of a storm sewer Also, persons. any 13. The court did not instruct we do in as to not find the record at particular duty any of point any liability or Rasters as it to reference insurance. City through did with ABC and the other Hospital than Collins v. Memorial of Sheridan Coun general negligence. its definition of ty, Wyo., (1974), acqui 521 P.2d 1339 declares liability sition of insurance to be a waiver of 7, then, presented Instruction No. as immunity. suggest We note two cases which jury: city damage arising of a for drains, City “Where a constructs it becomes blockage faulty may sewer and maintenance duty its to see that are maintained and depend upon operation whether and main kept repair, City may and a be held liable governmental proprietary: tenance is Lore negligent for its acts or omissions Douglas, Wyo., (1960) v. Town of 355 P.2d 367 performance duty of its to exercise reasona- Lander, 157, Savage Wyo. and v. Town of 77 ble care in the maintenance of its drains and (1957). 309 P.2d 152 courses, keep and to them in reasona- reviewing expected A court cannot be to repair.” ble prosecute independent inquiry an for errors passing 15. The court notes in v. Board of Oroz upon may possibly rely appellant which an County County Carbon, Commissioners of of may invoke abandonment or waiver. Scranton Wyo., (1978), 575 P.2d 1155 which abolished Whitlock, (1964). Wyo., v. 389 1015 We P.2d governmental immunity governmental for sub- matter, particularly so view this it is the since arising divisions “as to and all claims on policy municipali- announced of this court that 1, July negligence and after 1979” and held immunity ties have no in tort actions. private to be determined as in the case of 942 487, (1946), Wyo. 174 P.2d 505 169 A.L.R. it actual or construc

until and unless has 502, 514, Wyo. of the or obstruction and reh. P.2d 204 tive notice defect denied 62 177 it, Elledge citing (1947), following an to correct trial to court. opportunity the district 284, Moines, 144 City v. of Des 259 Iowa town on judge The trial had ruled for the Montello, (1966); Freitag v. 36 N.W.2d 283 drainage canal had over the facts where a 409, (1967); Bieber Wis.2d 153 N.W.2d 505 doing damage plain of flowed to the lands Newcastle, Wyo., v. of 242 City U.S.D.C. unprece This concluded tiffs. court (1965) Antieau, F.Supp. 457 1A Munici of rains an act God. dented constituted Law, pal may Howell, 11.119. Corporation That approved the rule While rule, be the but this court has not so held. part there no on the decided jury was has, We do not so decide because the town. that time this court Since upon point way not to course, called consider down handed its decision instruction, appropriate given by negli eliminated act-of-God defense judge City. trial demanded Vernieuw, supra. gence cases. v. Cox appeal We not questions will consider adopt This court has since been invited properly raised in the court. district However, liability. it con a rule strict Rock v. City Springs Police Protective firmed the rule that one who maintains a Association, (1980). Wyo., 610 P.2d 975 for conveying ditch water must answer raising objection This an effect acts, negligent but there substan his is no court, instructions for the first time in this holding tial reason for him accountable as and we will not will consider same and Douglas Water an insurer. Reservoirs given assume instructions as were satisfac Cross, Wyo., Users Assoc. v. 569 P.2d 1280 tory given. the time Rule at W.R.C.P. (1977); Taylor Company, Ditch Inc. v. Car McMichael, Wyo., v. 370 937 Butcher P.2d Wyo., (1974); ey, 520 218 Redland v. P.2d (1962). spirit purpose of this rule Tharp, Wyo., (1972); 498 P.2d 1240 South judge possible to inform the trial er Cheyenne Water and District v. Sewer opportunity rors so he to cor Stundon, (1971) (sewer Wyo., P.2d 240 Dreesen, rect Haley Wyo., them. 532 case); Thermopolis, McCormick Town of P.2d 399 (1970) (rule Wyo., acknowledged 478 P.2d 67 by plaintiff proof but there was a failure of respect responsibil The law with maintenance). negligent ity ditch establish for a seems to have been fixed Co., Big Howell v. Horn Basin Colonization continuing to maintain is a one. 14, 36, 37, Wyo. (1905): P. Taylor Company, Carey, supra. Ditch Inc. v. “ * * * The construction of ditches is one instability was aware of the customary recognized methods hillside which the ditch was located. water, appropriating conveying involves, Negligence also said we have irrigation the same for use ABC, respect recognizable danger necessary other purposes. is the meth apparent apparent which or should be and, indeed, od generally, more almost position of one in the actor. Endresen v. universally, employed. en While those Allen, supra. knowledge exempli- This gaged in such undertaking, an attended by testimony engineer the fied an others, with possible risks to should be City contract with the in 1963. Mr. John- answerable the conduct thereof with urging extension ston ABC had been an diligence proportioned to the apparent get of Main Street another access into risk, reason, there is no substantial we That study Sheltered Acres. disclosed think, for holding them accountable as problems were there subsidence within the insurers, injuries nor for not attributable proposed Main extension Street to some fault part. on their water, was ditch located. There were drainage problems

seepage west and The court occasion to review rule study above the Another in 1968 ditch. Gillette, in Jacoby City v. Town problem. City de- disclosed same by by street inaction as following dined construct the new stated the trial court in its studies because of the risk of land- those definition negligence. This includes fail- Again in slides. before fall of the ure to do ordinary person that which an home, appellees’ study by was done the would do under the circumstances. There Wyoming Department Highway State for was an evidentiary jury’s basis for the find- purpose determining geological fac- ing City negligent fixing per- its tors, which would affect extension of centage at 15%. Main Street as a belt construction in the Affirmed. area. The same reasonable inference was that was done either at instance and ROONEY, Justice, concurring, with knowledge City or it should have Justice, ROSE, joins. whom Chief that, known. study been discloses “A I majority opinion, concur with the but drainage higher ground runs from the con- exception must take some to footnote tributing groundwater problem prerog- thereof. I be think it to within the extent of standing surface water in legislature ative of the to enact such meas- places,” are active springs “There fit, ures as it refuse to sees enact such springs or evidence of within each slide fit, measures as it sees and to “tinker” with thought These springs area. are to be the any legislation as it sees fit—be it a uni- major source of water.” Water was found form Wyoming legisla- act or A otherwise. by study ponding to be in some areas. tor must complete rep- have freedom to that, engineer Another testified “If the constituency resent his the enactment freely ditch had been flowing the water laws without deference to that which for- might got past the slide area faster eigners might proper is a think law for and, thereby, ponded directly water act, Wyoming again it a uniform * * * — slope into behind the house. legislature model act or otherwise. Our has pond putting fact was there water modify many seen fit to amend and uni- slope into the certainly contributed to the passed form laws it as such was dictated collapse of the hill.” water in the “[T]he * * by Wyoming’s special only needs. The con- was charging ditch hill side legislation cern of the courts with should be culvert was installed be- provided by the check and balance pinching cause earth movement was system government our under which ditch. established. From the evidence it was obvious that ditch drainage was built for flood grant stated of the easement. From through

studies made from 1963

character of the area above ditch was

such accumulations of water

snow, rain and spring runoff had to COURT, partnership, away.

be carried J. B. These studies were made SERVICE Johnston, Appellants City. for and at the and Mansel C. instance of There- fore, there (Defendants), the City foreseeable of harm risk if the water was not carried off. It is not uncommon ditches to WHARTON, Appellee (Plaintiff). Michael clogged growth become from natural No. collected debris. prob- Here was known of long standing propensities lem area Supreme of Wyoming. Court to slide if overcharged with water. It could Aug. have been reasonably expected that failure to maintain damage the ditch would cause

to those on the hill the ditch. below Failure Negligence

to maintain is inaction.

Case Details

Case Name: ABC Builders, Inc. v. Phillips

Court Name: Wyoming Supreme Court

Date Published: Aug 13, 1981

Citation: 632 P.2d 925

Docket Number: 5468-5470 and 5484

Court Abbreviation: Wyo.