At the outset it must be determined whether the harsh rule of caveat emptor applies as between these parties. We are concerned with the right of the plaintiff sub-tenant to recover in tort for damage resulting from negligent construction against parties with whom plaintiff had no contractual relationship. It would appear that these cases fall within the exception to the general rule that an independent contractor may be liable to a third person after the contractor has completed work where the completed work product is inherently or intrinsically dangerous or so defective as to be imminently dangerous to third persons.
Cox v. Ray M. Lee Co.,
Case No. 47229. The motion for summary judgment of defendant Mullins was supported by the affidavits of two of its employees. Their affidavits show that the work done by Mullins was performed "fully and strictly in accordance and compliance with the plans and specifications” that were furnished by the general contractor, Kuniansky, and that neither had received any information of any defects in the construction or was aware of the same. The evidentiary matter contained in the affidavits fails to carry the burden required of the movant to prove that he is entitled to the grant of a summary judgment. The affidavits in no way pierce the allegations in the amended complaint that the *477 work performed was inherently and intrinsically dangerous and was so defective as to be imminently dangerous to third persons. Thus, the trial court erred in granting the motion. A jury question remains on the issue raised by the amendment.
Case No. 47230.
(a) Although the judgment appealed in this case purports to be the grant of a motion to dismiss the complaint, there are in the record answers to interrogatories and the appeal will be treated as a motion for summary judgment. This defendant does not argue that he has pierced the amended pleadings by any evidence contained in the answers to the interrogatories. He bases his entire argument on the premise that the amended complaint alleging that the construction was inherently and intrinsically dangerous and so defective as to be imminently dangerous to third persons fails to state a claim for relief under the Civil Practice Act. The argument is made that the general averments of the complaint are insufficient where allegations of this nature are involved and that specific averments are necessary. This has no merit. The pertinent part of the amended complaint alleges improper and faulty construction and erection of the supporting braces of the roof and that "Said roof and building were designed and built negligently and improperly and intrinsically dangerous to third persons ...” A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If within the framework of the complaint evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.
Mitchell v. Dickey,
(b) The defendant in this case also pleaded the statute of limitation. The complaint does show that the building was constructed in 1966; that the roof collapsed in 1970; and that the action was not brought until May of 1971, more than four years after the completion of the building. The case of
Wellston Co. v. Sam N. Hodges, Jr. & Co.,
Judgments reversed.