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Town of Alma v. Azco Construction9/18/2000
pipes resulting in damage to the house. Lembke and the homeowners entered into a written contract whereby Lembke agreed to install plumbing in the new house. See id. at 674. The homeowners alleged two negligence claims: first, that Lembke's employee failed to install a casing or bushing around a pipe that resulted in a severed pipeline, and, second, during a repair job to a heater, that Lembke's employee stepped on and crushed a copper gauge tube, causing water to accumulate in a pit. See id. at 675. The homeowners alleged that water escaped from pipelines and saturated the clay formation beneath the house causing the home to be dislocated and extensively damaged. See id.
Lembke argued that the contract provided the exclusive remedy¾its terms indicated that it "lawfully expires one year from date"¾and therefore the negligence actions were barred. Id. at 337, 366 P.2d at 675. We rejected Lembke's argument and allowed the negligence action to proceed. We observed that " he contract here imposes no duty on Lembke to exercise due care and caution and the necessary degree of skill involved in a plumbing installation . . . ." Id. Because the contract did not address the defendant's duty of care, we found that the independent common law duty was not limited.
In contrast, the contract in this case specifically imposes a duty of care concerning AZCO's skill and workmanship in installing the water system. This duty provides the basis for a cause of action by the town and the individual landowners under contract law. Therefore, unlike in Lembke, no common law duty of care independent of the contract exists here.
In Metropolitan, 621 P.2d 313, the plaintiffs brought a negligence action against Metropolitan Gas Repair Service ("Metropolitan"), among others, for damages resulting from the explosion of a gas operated boiler that furnished hot water heat to the house. The plaintiffs alleged that the negligence of the defendants consisted of the failure to inspect a safety system and to discover a plugged or obstructed safety relief valve during repair work at the house. See id. at 315-16. As a result of the obstructed safety valve, pressure in the boiler was not released and the boiler exploded causing extensive destruction of the house. See id. at 316. The plaintiffs argued that even though Metropolitan's repairman had not worked directly on the safety valve, an independent duty of care existed requiring the repairman to inspect the safety valve during the repair. See id. We agreed and held that Metropolitan may have breached a duty independent of the contract when it failed to inspect the safety valve. See id. at 318. In reaching our holding, we stated, "The contractual obligation is not the touchstone of civil liability in tort. It is only the matrix from which an independent obligation may arise." Id. at 317. We permitted the negligence action because we found that the repairman, working under a contract requiring him to replace a pump motor, had a duty of care independent of the contract to also inspect the safety valve on the boiler. See id.
Finally, in Cosmopolitan Homes, 663 P.2d 1041, we considered whether subsequent purchasers of a home could assert a negligence claim for property damage allegedly caused by the negligence of the builder. The plaintiffs were the fourth owners of a house designed, built, and sold by Cosmopolitan Homes, Inc. See id. The house sustained cracking in the foundation as a result of movement or settling of the house which had not occurred prior to the time the plaintiffs purchased the house. See id. Relying heavily on policy concerns about protecting home buyers, we held that the plaintiffs could maintain a negligence action for latent defects in the h
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