Stuart v. Crestview Mutual Water Co.

gence in designing, engineering and constructing the water system. Various demurrers, motions for judgment on the pleadings or for summary judgment were filed by the defendants. All such motions were granted by the trial court, which gave judgment in favor of all the defendants involved in this appeal.^[1]

As is apparent (see fn. 1, supra) procedurally this case is a Chinese puzzle. Actually, however, the legal issues involved boil down to whether or not plaintiffs should have been permitted to file a first amended complaint. It is clear that the trial court would have given leave to file it, had it felt that it stated a cause of action against any defendant.^[2]

The proposed first amended complaint alleged these background facts: Crestview, the water company, which was incorporated in 1950, owned, managed, maintained and operated a water distribution system; the system was designed, engineered and constructed by Janss, the developer, and Jensen Associates, the engineers.

Jensen Associates are in the business of designing, engineering and constructing water development systems, and knew and intended that the water

distribution system would be used to supply water for fire protection services for persons such as plaintiffs who lived in the Crestview water area.

Janss is in the business of developing residential property, and, as part of the business operations, directed the design, planning and layout of the water distribution system, and hired engineers to design and construct it. Janss transferred the water system to Crestview, knowing and intending that, among other purposes, the system would be used for fire protection, and that the system would be used without opportunity for inspection by the users.

On September 26, 1970, there was a fire which spread towards plaintiffs’ properties. Because the supply and flow of water from the water system was inadequate, plaintiffs were unable to protect their properties from the spreading fire. As a result they suffered substantial damages.

Allegations intending to fasten liability for the loss on the three defendants, the water company, the developer and the engineers, are set forth below.

Liability of the Water Company

Three of the causes of action which plaintiffs attempt to state are directed against Crestview, the water company. They proceed, respectively, on theories of negligence, failure to comply with certain standards established by the supervisors of Ventura County in 1965, and breach of contract.

Plaintiffs concede, as indeed they must, that under an unbroken line of cases starting with Ukiah v. Ukiah Water and Imp. Co., 142 Cal. 173 [ 75 P. 773 ] and ending, perhaps, with Heieck and Moran v. City of Modesto, 64 Cal.2d 229 [ 49 Cal.Rptr. 377 , 411 P.2d 105 ], California case law has immunized water companies from civil liability for loss by fire due to failure to maintain their systems properly.^[3]

It is, literally, hornbook law that this immunity represents an aberration in the context of modem tort principles. (Prosser, Law of Torts (4th ed.) pp. 62S-626.)^[4]

Rational attacks on water company immunity can be made on at least three distinct grounds.

1. First and foremost it is arguable that if section 1714 of the Civil Code, as interpreted in Rowland v. Christian, 69 Cal.2d 108 , 118-119 [ 70 Cal.Rptr. 97 , 443 P.2d 561 , 32 A.L.R.3d 496 ], can sweep away judicially created immunities which have favored possessors of real property, it can, or indeed must, affect other immunities.

2. A close reading of California cases seems to support the argument that we have reached the present state of the law by a paradox: one of the reasons given in the cases for immunizing water companies is that they are really performing a municipal function and that the water company “cannot be charged with a greater liability than the city itself.” (Ukiah v. Ukiah Water and Imp. Co., supra, 142 Cal. at p. 178.) Yet in Stang v. City of Mill Valley, supra, 38 Cal.2d 486 , the court continued to recognize the immunity in spite of the Public Liability Act of 1923, on the ground that the Legislature could not have intended that public entities should be liable where private companies were not. (Ibid., p. 491.)

3. Several of the rationales which have been adduced in favor of water company immunity have failed to evoke similar judicial response when considered, in connection with other enterprises. (E.g., Hanlon D. & S. Co. v. Southern Pac. Co., 92 Cal.App. 230 , 235 [ 268 P. 385 ] (railroads); compare Langley v. Pacific Gas & Elec. Co., 41 Cal.2d 655 , 661 [ 262 P.2d 846 ] (electric company); with Gelhaus v. Nevada Irrigation Dist., 43 Cal.2d 779 , 783 [ 278 P.2d 689 ] (water district).)

Nevertheless even after all these arguments are carefully considered, the question remáins whether it is appropriate for an intermediate appellate court to announce a holding squarely contrary to several Supreme Court authorities directly in point. Our conclusion is that it would be improper for us to do so in this particular situation. The best we can do for plaintiffs is to note that the record adequately presents the issue for Supreme Court consideration.^[5]

It is, however, established that “a water company is not liable for damages resulting from a failure to supply water for a particular use in the absence of a specific undertaking to supply water for that use.” (Gelhaus v. Nevada Irrigation Dist., supra, 43 Cal.2d 779 , 782.) Plaintiffs argue that fire extinguishing is a “useful purpose” of water. So, to be sure, it is. The fact remains, however, that Crestview did not specifically undertake to supply water for that purpose.

To sum up: the first amended complaint does not plead facts constituting a cause of action against Crestview, the water company.

Liability of Developer and Engineers

The first amended complaint attempts to state causes of action against the developer and the engineers on the following theories: 1. negligence in the design, engineering, construction and maintenance of the water system; and 2. strict liabilty.^[6]

We first consider the cause of action for negligence. The complaint under consideration alleges in language more than adequate to withstand a general demurrer, that when the property was developed and before the water distribution system was turned over to Crestview, the developer and the engineers so negligently designed, engineered and constructed the system as to cause the failure of water delivery when the need occurred 20 years later.

This cause of action is entirely distinct from the causes of action which plaintiffs attempt to state against the water company. The allegations are broad enough to cover any conceivable defect in the design and construction of the system which caused an inadequate supply of water to be available at the time of the fire. It does not require an extensive citation of authorities to demonstrate the adequacy of these allegations. (Dow v. Holly Manufacturing Co., 49 Cal.2d 720 , 725 [ 321 P.2d 736 ]; Gagne v. Bertran, 43 Cal.2d 481 , 489-490 [ 275 P.2d 15 ]; Knell v. Morris, 39 Cal.2d 450 , 456 [ 247 P.2d 352 ]; Hale v. Depaoli, 33 Cal.2d 228 , 230-232 [ 201 P.2d 1 , 13 A.L.R.2d 183 ]; Peak v. Richmond Elementary Sch. Dist., 161 Cal.App.2d 366 , 368 [ 326 P.2d 860 ].) The passage of time presents, at best, a question of fact. (See authorities collected in Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633 , 642-643 [ 105 Cal.Rptr. 890 ].)

The developer’s and engineers’ only theory is that somehow they are entitled to piggyback immunity on Crestview’s shoulders. No authority is cited to support this theory. Instead the engineers’ brief misstates the rule of immunity as applying to all “water suppliers” and then assumes that the engineers who merely designed the conduits for such supply fall within that category. Having thus transformed the engineers into a water company, the brief proceeds with a spirited defense of water company immunity.^[7] The developer’s brief similarly makes no effort to justify the claimed immunity from the law of negligence, but simply informs us that it “can add no additional decisional authority beyond that already provided and so cogently discussed in Respondent’s Brief on behalf of Jensen.”

At the oral argument of this appeal we specifically inquired of counsel whether they knew of any reason other than water company immunity which militated against plaintiffs having stated a cause of action against their clients. They knew of none. Neither do we.^[8]

We turn to strict liability. As far as the developer is concerned we find this case indistinguishable in principle from Avner v. Longridge Estates, 272 Cal.App.2d 607 , 615 [ 77 Cal.Rptr. 633 ] and Kriegler v. Eichler Homes, Inc., 269 Cal.App.2d 224 , 227 [ 74 Cal.Rptr. 749 ]. In Kriegler the defendant developer who had built thousands of homes was held strictly liable to an owner-once-removed of one of the homes, when certain steel tubing used in the heating system failed. In Longridge the defendant had developed hillside property in which the plaintiff purchased a lot and built a home. Several years later the lot-pad settled and a filled slope failed. The developer’s legal responsibility on a strict liability theory was recognized.

“As the court further stated in Gagne, supra, at pages 489 and 490: ‘The services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for negligence. Those who hire such persons are not justified in expecting infallibility, but can expect only reasonable care and competence. They purchase service, not insurance. [Citations.]’ ”

Disposition

The rather complex disposition of this appeal results from the procedural intricacies summarized in footnote 1.

The judgment in favor of Crestview Mutual Water Company and against plaintiffs and intervener (entered January 21, 1972, book 22X, page 268) is affirmed.

The judgment in favor of Janss Investment Corporation and. against plaintiffs and intervener (entered January 20, 1972, book 22X, page 260) is reversed.^[9]

The judgment in favor of Jensen Associates and against Crestview Mutual Water Company on Crestview’s cross-complaint (entered January 31, 1972, book 22X, page 320) is affirmed.

The case is remanded to the trial court for proceedings not inconsistent with this opinion.^[10]

Ashby, J., and Hastings, J., concurred.

The petitions of appellants Stuart, Norbury and Cal-Farm Insurance Company and of respondent Jensen Associates for a hearing by the Supreme Court were denied December 19, 1973.