Holcomb Construction Co. v. Armstrong

590 F.2d 811

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 8, 1979
• Docket: No. 76-1070
• Status: Published

Opinions

INGRAM, District Judge:

This is an appeal from an order of the district court dismissing an action filed by Holcomb Construction Co., Inc., appellant here (hereafter called Holcomb), against Thomas J. Armstrong and others, appellees (hereafter collectively called Armstrong).

Factually, the complaint alleges that Holcomb had a contract for the construction of a new bridge across the Truckée River and for the extension of a roadway; that the contract contemplated the use by Holcomb of an existing bridge; that Armstrong negligently rendered the existing bridge unusable thus compelling the use by Holcomb of circuitous route for the transportation of materials and the like to its greater cost and consequent damage.

The complaint is drawn in three claims viz. public nuisance, negligent entrustment and a third-party beneficiary claim upon Armstrong’s coverage.

The district court’s order dismissing the action was based on the finding by the court that Holcomb did not allege any injury substantially different from that sustained by the public generally and in consequence could not maintain a claim under the Nevada Public Nuisance Law (Record on Appeal, p. 54 et seq.).

We disagree with the conclusion of the district court. We therefore vacate the order of dismissal and remand the action.

We are cognizant of the deference which is due the district court’s construction of the law of the state in which it sits, American Timber and Trading Co. v. First National Bank of Oregon, 511 F.2d 980 (9th Cir. 1974), cert. denied, 421 U.S. 921, 95 S.Ct. 1588, 43 L.Ed.2d 789, as well as the established principle of diversity cases that where the law of the forum state does not address an issue directly the district court may look beyond that state and select the well reasoned law of other jurisdictions. Winston Corp. v. Continental Casualty Co., 508 F.2d 1298 (6th Cir. 1975), cert. denied, 423 U.S. 914, 96 S.Ct. 218, 46 L.Ed.2d 142. As the district court observed, there are no Nevada decisions directly addressing the question as to whether or not the incurring of extra expense in the performance of a contract as the result of the tortious conduct of another constitutes a special injury sufficient to enable one to maintain an action.

We think that the great weight of authority supports the notion that one who is impeded in the performance of a particular contract by the obstruction of a highway thereby sustains a special injury other and different from that sustained by the public generally.¹ Accordingly, we deem the allegations of the complaint adequate to state a claim.

Order vacated and case remanded.

1 . Sholin v. Skamania Boom Co., 56 Wash. 303, 105 P. 632 (1909); Knowles v. Penn R. Co., 175 Pa. 623, 34 A. 974 (1896); Gulf States Steel Co. v. Beveridge, 209 Ala. 473, 96 So. 587 (1923); Brewer v. Missouri Pac. Ry. Co., 161 Ark. 525, 257 S.W. 53 (1924); Tuell v. Inhabitants of Marion, 110 Me. 460, 86 A. 980 (1913); Commissioners of Anne Arundel Co. v. Watts, 112 Md. 353, 76 A. 82 (1910).