Hooper Water Improvement District v. Reeve

642 P.2d 745, 1982 Utah LEXIS 909

• Court: Utah Supreme Court
• Decided: March 2, 1982
• Docket: 17284
• Status: Published

Opinions

PER CURIAM:

This is an appeal from the dismissal of an action on Motion for Summary Judgment. The complaint alleged negligence on the part of the defendant, Reeve, a consultant engineer, in supervising the construction of a water well, under the terms of a contract that was to be performed “as rapidly as possible.”

In support of the Motion for Summary Judgment the defendant filed an affidavit, attaching the contract and stating that the work was commenced in November, 1967, and abandoned in July, 1968. Also attached was a photocopy of a “Report of Well Driller” filed with the State Engineer in August, 1967, showing an abandonment of the project, because of sand content persisting over a 100 hour continuing test; thus confirming the end of the project.

In answer to interrogatories, defendant stated that his relationship under the written contract was as consultant engineer, and under its terms such relationship extended for one year after construction which in this case was on or about July 1, 1969, a year after the Well Driller’s Report, which was filed in the State Engineer’s Office, showed “Work Completed,” July 1, 1968.

The complaint in this case was filed over ten years after the termination of the contract and after defendant’s relationship as consultant on the subject project had ended. The complaint specifically referred to such relationship as applied to construction of this particular well, and the allegation in the complaint had no date inserted as to how long the relation of “client-consultant engineer” persisted.

About a month after the complaint was filed, plaintiff’s Chairman of the Board, executed and filed a self-serving affidavit saying that plaintiff terminated defendant’s service as a retained consultant because of the discovery of problems in the well dug eleven years before in 1967.

It is difficult to discern what kinship the discovery of such problems has with the present lawsuit, when there is no pleading, no affidavit or other specificity in the record as to the nature and extent of the alleged “negligence,” which is the essence of this entire litigation. The plaintiff suggests that the allegation of “negligence” alone, without any support other than hope and conjecture, survives a Motion for Summary Judgment, i.e., that mere mention of the tort is sufficient to make synonymous the word “negligence” with the phrase “genuine issue of fact.” This conclusion appears to be anathema to the very purpose of the Motion for Summary Judgment process of sifting contention and fact to determine if the latter has any substance.

The question of whether there is an issue of fact is not the touchstone of this case, since this case simply is one of limitation of actions. The whole case is dependent on whether the seven year limitations statute applies (U.C.A., 1953, 78-12-25.5). Said statute bars claims for damage to property caused by any person “performing or furnishing the design, planning, supervision of construction of construction of improvements to real property.” Obviously, the statute strikes down the cause of action launched here.

The plaintiff’s case on appeal is based on false syllogistic reasoning, since its theme appears to be that because a doctor is a professional man and can be sued for negligence, and a consulting engineer is a professional man and likewise can be sued for negligence, the fact that the first can be sued when the plaintiff discovers a sponge was left in his stomach, the latter can be sued when it is discovered sand was left in his well.

The fallacy at once becomes apparent when Section 78-12-25.5, outlined above, is placed alongside Section 78-14-4, which has to do with commencing actions of malpractice against a “health care provider” within, at most, four years after the patient “should have discovered the injury.” Section 78-12-25.5 specifically targets the time when the statute commences to run as being at the “completion of construction,”— not discovery of negligence.

There is no affinity between the two statutes by way of analogy, which is the only reason advanced to justify recovery, failing which, the trial court’s judgment must be and is affirmed with costs to the defendant.

DURHAM, J., does not participate herein.