# Andrews v. Del Guzzi > Washington Supreme Court · June 23, 1960 · 56 Wash. 2d 381 URL: https://www.frixlaw.com/law-library/cases/9546027 ## Case - **Full name:** William L. Andrews Et Al., Respondents, v. Bruno Del Guzzi Et Al., Appellants, Ralph E. Schmitt Et Al., Defendants - **Court:** Washington Supreme Court - **Decided:** June 23, 1960 - **Citations:** 56 Wash. 2d 381; 353 P.2d 422; 1960 Wash. LEXIS 361 - **Precedential status:** Published - **Opinion:** Dissent by Ott - **Judges:** Donworth, Finley, Rosellini, Foster, Hunter, Weaver, Mallery, Hill, Ott - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9546027 ## How later opinions describe it (automated extraction) - recognizing doctrine but finding contractors liable under exception for inherently or imminently dangerous conditions ## Opinion text Ott, J. (dissenting) — If the dwelling which the tenant leased proved to be untenantable, to the tenant’s damage, the landlord might be liable in damages upon the theory of breach of contract. However, if the tenant elects, as in this proceeding, to exonerate his landlord from liability, and seeks to recover his loss from the contractor who built his landlord’s dwelling, the contractor’s liability, if any, to the tenant must arise out of tort or breach of contract. It is conceded, in the instant case, that there is no contractual liability because no privity of contract was shown. In my opinion, the contractor owes no tort liability to the tenant. *390 The contractor in this proceeding built the dwelling according to plans and specifications approved by the owner. The chimney extended nineteen and one-half inches above the roof, as the plans and specifications provided. The owner claims no negligence on the part of the contractor. If the chimney was four and one-half inches too short, it was a condition which was obvious to the owner. The owner accepted the dwelling with full knowledge of this obvious condition, and thereby waived any objection arising out of the height of the chimney. The basis of this action is negligence. The tenant must prove that the contractor was negligent in performing his building contract and that the height of the chimney he constructed did create an imminently dangerous condition. The evidence established that the contractor was a builder of many years’ experience; that be had constructed many houses in this area, and that his expert building practices were those approved and adopted by other experts who had been and were building homes in that vicinity. As such building expert, he is required to exercise due care that his structure will be reasonably tenantable and usable for the purposes for which the building is constructed. He is not expected to build a structure to withstand the impacts of acts of God or of unforeseeable or unexpected circumstances. Every owner and every tenant assumes the risk of the happening of such circumstances. The general rule is that acceptance by the owner exonerates a contractor from liability for injury to third persons. The majority recognize this general rule to be the law of this state, but hold that the exception to the rule is here applicable, in that the contractor created a condition which was imminently or inherently dangerous, and that the contractor is liable because the tenant proved damage as a proximate result of this condition. I do not agree that the respondents’ evidence brought them within the exception. Respondents’ expert witness testified as follows: “Q. Now, if the stack were lower than your recomménded minimum would that down drafting occur all of the time? *391 A. Probably not. Q. Could it occur very rarely? A. Yes, it would be a situation where it would be entirely dependent upon atmospheric pressures, wind velocities, temperatures — the temperature of the flue gas, the temperature of the air. It is one of these things that conditions have to be just at the right balance; the temperature, velocities, all have to be in balance to produce a down draft.” He also testified that the furnace “Could have operated for ten years before the first failure.” With reference to the danger resulting from the escape of carbon monoxide gas into the dwelling, he testified: “Q. It would take a long time, wouldn’t it, or an awful lot of continuous down draft for a quantity of carbon monoxide to build up from the ceiling down? A. Under optimum burning conditions, yes. Q. Well, let’s say under less than optimum? A. Well, then that would depend on how much less. Q. But again it would not surprise you if those conditions were obtainable or existed only once in four or five, or two or three years? A. It could exist only once in a lifetime, yes, sir.” Was this evidence sufficient to establish that the chimney was imminently or inherently dangerous? There was no proof that the same condition would not have resulted had the chimney been four and one-half inches higher. Respondents’ expert merely said that a downdraft would have been less likely to have occurred had the chimney been higher. Viewing the evidence most favorably for respondents, the chance of a downdraft occurring was very remote. It depended upon the happenstance of the coincidence of precise atmospheric conditions. The downdraft was not the dangerous condition. The dangerous condition was the escape of carbon monoxide gas into the dwelling, and that condition was not dangerous without still another circumstance which prevented the gas from escaping and allowed it to accumulate and remain in the dwelling. The court found, as a matter of law, that the condition created was not inherently dangerous. It submitted to the jury only the question of whether or not an imminently dangerous condition existed. Webster’s New International Dictionary defines the word *392 “imminent” as “Threatening to occur immediately; near at hand; impending.” Giving respondents’ evidence its most favorable inference, it, in my opinion, falls far short of proving a condition “threatening to occur immediately” or “impending.” Whether the height of the chimney contributed toward the creation of a dangerous condition admittedly depended upon the simultaneous occurrence of intervening unforeseeable circumstances. The possibility that the height of the chimney caused or created any part of the dangerous condition is so remote and speculative that it cannot be said the chimney, as constructed, was either imminently or inherently dangerous. Items which qualify as exceptions to the general rule have been limited by the courts to those having known dangerous propensities, such as dynamite, gunpowder, dynamite caps, and firearms. The majority cite no authority, nor have I been able to find any, for extending the exception to the general rule of negligence to encompass facts such as are here presented. To impute negligence to a contractor under these facts would require every contractor to guarantee his structure against acts of God and against all future unforeseeable circumstances. This is an unjust and unwarranted extension of liability under the law of negligence. In my opinion, the court erred in refusing to dismiss this case at the close of the evidence, and the judgment should be reversed. Weaver, C. J., Mallery, and Hill, JJ., concur with Ott, J. October 4, 1960. Petition for rehearing denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9546027. Public record. Not legal advice.