Samuelson v. Douthirt ( 1974 )

MR. JUSTICE GROVES

delivered the opinion of the Court.

We granted certiorari to review the Colorado Court of Appeals opinion found at 33 Colo. App. 195, 518 P.2d 1363. We affirm in part and reverse in part.

The facts are set forth in the Court of Appeals opinion in considerably more detail than here. The defendant Veterans Gas & Service, Inc. (Veterans) installed a gas line leading to the plaintiffs’ residence. Nearly six years later the plaintiffs were injured in an explosion, allegedly caused by the unworkmanlike installation of the line. Plaintiffs pleaded two claims in the complaint,- one based on negligence in the installation of the pipe and one for breach of implied warranty arising out of the contract to install the pipe. Specifically, the contract embraced the installation of two gas appliances. At all stages in the case, the issue as to implied warranties was treated as. if this were merely a contract to render services. The trial court granted defendants’ motion to dismiss the breach of warranty claim on the grounds that there was insufficient evidence of the contract and upon the breach thereof. The jury found in favor of the defendants upon the negligence claim.

The Court of Appeals held that there was sufficient evidence to send the issue of implied warranty to the jury and held, we believe for the first time in Colorado, that a contract to furnish services carries with it an implied warranty of workmanlike conduct. We reverse on this issue.

We affirm the ruling that the trial court committed reversible error in giving a foreseeability instruction.

Veterans was insured under a policy of the defendant Continental Casualty Company at the time of the installation. Veterans later became defunct. That policy expired nearly five years prior to the explosion. It provided:

“This policy applies only to accidents which occur during the policy period within the United States of America, its territories or possessions, or Canada.”

The trial court held that Continental Casualty Company was liable under the policy for any damages awarded and for the costs of litigation. The Court of Appeals reversed. Here we affirm the Court of Appeals.

I.

As stated by the Court of Appeals, the statutory warranties imposed by the Uniform Sales Act do not apply here. We regard it as the better part of wisdom not to extend as a matter of law implied warranties from sales to service contracts. We believe it the better rule to limit liability to acts of negligence. We follow the well documented opinion in Pepsi Cola Bottling Co. v. Superior Burner Serv. Co., 427 P.2d 833 (Alaska 1967). There is no need for us to cite very much other authority as there is a wealth of citations in that opinion.

This is the rule of a great majority of courts. Note, Implied Warranties in Service Contracts, 39 Notre Dame Lawyer 680 at 683 (1964).

In Gagne v. Bertran, 43 Cal. 2d 481, 275 P.2d 15 (1954), Justice Roger J. Traynor wrote:

“Thus the general rule is applicable that those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.

* * * *

“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.”

Under a doctrine of implied warranties, there could be liability without fault in service contracts. This should not be the court-made law in this state. We will just stay with that reliable fellow — the reasonably prudent man.

II.

The trial court gave the “foreseeability” instruction set forth in Colorado Jury Instructions 9:28 as follows:

“Defendant’s negligence, if any, is not the proximate cause of any injury to the plaintiff, unless injury to a person in the plaintiff’s situation was a reasonably foreseeable consequence of that negligence. The exact or precise injury need not have been foreseeable. It is sufficient if a reasonably prudent person, under the same or similar circumstances, would have anticipated that injury to a person in the plaintiff’s situation might result from the defendant’s conduct.”

The Court of Appeals ruled that the giving of this instruction was reversible error, stating:

‘ ‘This instruction is necessary only when the evidence presents a jury question on whether the injured party was a person within the foreseeable zone of danger created by defendant’s negligence and thus was owed a duty by defendant. See W. Prosser, Torts § 43 (4th ed.). There is no question in this case that defendants owed plaintiffs a duty of care in installing the propane system. Submission of the foreseeability instruction presented to the jury an element not properly before it in the instant case. The verdict does not preclude the possibility that the jury considered ‘foreseeability’ as it related to the reasonableness of ddfendants’ conduct in laying the pipe, as counsel for defendants in final argument asserted it should, as opposed to defining the duty owed by defendants.”

We agree with and affirm the Court of Appeals as to this issue.

The rules relating to the giving of instructions concerning negligence, contributory negligence and proximate cause are substantially applicable here. As was stated in Buchholz v. Union Pacific R. R. Co., 135 Colo. 331, 311 P.2d 717 (1957):

“Questions of negligence and proximate cause are for the court where the evidence, and the inferences to be drawn therefrom, [are] such that reasonable men, giving fair consideration thereto, must reach the same conclusion.” See Fowler Real Estate Company v. Ranke, 181 Colo. 115, 507 P.2d 854 (1973).

If it appears to the court under the guidelines set forth in Buchholz, supra, that the plaintiff was not within the zone of foreseeable danger created by the defendants, then there is no negligence and a verdict should be directed in favor of the defendant. See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). Likewise, under such guidelines, when as here the plaintiff is within that zone, the foreseeability instruction should not be given. In those cases where there is a question of fact as to whether the plaintiff was within the zone, the instruction is to be given.

In this case, it is clear as a matter of law that this plaintiff was within the foreseeable zone of danger, and that the risk created by the alleged negligent laying of the pipe was also foreseeable.

m.

As to the question of when the “accident” occurred, we agree with the Court of Appeals that it did not occur during the policy period. We quote with approval from the Court of Appeals opinion:

“The insurance policy in question is not ambiguous; it covers only those injuries which are the result of accidents occurring during the period the policy was in force. The ‘accident’ causing injury in this case occurred at the time of the explosion, not when the allegedly wrongful act was committed. Home Mutual Fire Insurance Co. v. Hosfelt, 233 F. Supp. 368 (D.C. Conn.) .... As the court stated in Hosfelt, supra,

“ ‘To stretch the scope of “accident” backward in time to reach the date of the earliest beginning of any prior event which might be regarded as having a causal relation to the unlooked-for mishap would introduce ambiguity where none now exists.’ ”

In Century Mutual Insurance Co. v. Southern Arizona Aviation, Inc., 8 Ariz. App. 384, 446 P.2d 490 (1968), it was stated that the word “accident”

“clearly implies a misfortune with concomitant damage to a victim, and not the negligence which eventually results in that misfortune.”

Accordingly, the defendants were not covered by the insurance policy when the accident occurred. For that reason, there can be no liability upon Continental Casualty Company.

The cause is remanded to the Court of Appeals with directions to issue a remittitur consonant with the views expressed in this opinion.

MR. CHIEF JUSTICE PRINGLE and MR. JUSTICE KELLEY dissent.