Opinion
Rehearing Denied April 6, 1971.
Page 511
Wood, Ris & Hames, Thomas T. Crumpacker, Denver, for defendants in error Elmer Christopher and Juanita M. Christopher.
Bruno & Bruno, Frank A. Bruno, H. D. Reed, Denver, for plaintiffs in error.
Blunk & Johnson, George E. Johnson, Denver, for defendants in error John F. Bruno Realty Co. and Dorothy Chisholm.
DWYER, Judge.
The parties appear here in the same order as in the trial court and are referred to as plaintiffs and defendants or by name.
Plaintiffs, Anne Esposito and S. P. Esposito, commenced this action to recover damages for injury to their property and for personal injuries to Ann Esposito. The complaint alleged that the defendants, Elmer N. Christopher and Juanita M. Christopher, owned a house adjacent to plaintiffs' house; and that the Christophers had listed their property for sale with the defendant, John F. Bruno Realty Co. The complaint further alleged that the defendant Dorothy Chisholm, an agent of the realty company, turned on the underground sprinkling system located in the lawn of the Christopher property and negligently left it unattended, and, as a result thereof, the water from the sprinkling system flooded plaintiffs' house. Plaintiffs further alleged that this flooding caused damage to their real and personal property and caused Anne Esposito to sustain personal injuries while she was attempting to protect personal property from water damage.
This case was previously before our Supreme Court in Esposito v. Christopher, 166 Colo. 361, 443 P.2d 731. The trial court had dismissed Anne Esposito's claim for damages resulting from personal injuries. The Supreme Court reversed, stating that '(d)epending upon the evidence which might be offered in support of the claim for personal injuries, a question of proximate causation warranting jury consideration under appropriate instructions might be raised.' Upon remand, the case proceeded to a jury trial on both claims. At the close of the evidence offered by plaintiffs, the trial court granted defendants' motions for a directed verdict. Plaintiffs seek reversal, arguing that their evidence was sufficient to establish a prima facie case and that the case should have been submitted to the jury.
The evidence offered by plaintiffs established the following facts. The Christophers' house was separated from the Espositos' house by approximately ten to fifteen feet of lawn. The slope of the ground was such that the Christopher property was about a foot higher than plaintiffs' property. The first level of plaintiffs' house was lower than the ground level. On the side of plaintiffs' house facing the Christopher property there were three windows built into window wells approximately 1 1/2 feet below the ground level.
About noon on September 6, 1964, Dorothy Chisholm turned on the sprinkling system by opening a valve located on the patio. She left the house to attend a social function. She intended to return later in the afternoon to turn off the water but failed to do so.
At about 5:30 a.m. the following morning, Mr. Esposito discovered that the first level of their home was flooded with approximately 3 to 4 inches of water. Water was coming into the Esposito home from all the window wells on the side of their house which faced the Christopher property. The Espositos went outside and discovered that the lawn area between the two houses was saturated with water; they also discovered that one of the pipes in the Christophers' sprinkling system had broken below one of the sprinkling heads. Water was shooting out from the break in the pipe onto the outside wall of the Esposito house. Mrs. Esposito testified that some of the water coming into the house was coming through the window wells. She also testified that some of the water coming into the house 'seemed to be coming down from the lower areas of the wall.'
At approximately 7:30 a.m., upon request by Mrs. Esposito, the city water department shut the water off at a stop box located at or near the curbing of the street. Mrs. Esposito testified that water continued to flow into the first level of the house for approximately two hours after the water department turned off the water.
After plaintiffs rested, the trial court directed a verdict in favor of the defendants. The court ruled that there was sufficient evidence to establish that Mrs. Chisholm was negligent in turning the sprinkler system on and leaving it unattended. However, the trial court ruled as a matter of law that the negligence of Mrs. Chisholm was not the proximate cause of the flooding of plaintiffs' house.
Generally, the issues of negligence and proximate cause are issues for the trier of facts. Only in the clearest of cases where the evidence is undisputed and reasonable minds could reach but one conclusion are the questions of negligence and proximate cause to be taken from the jury and determined as a matter of law by the court. Hilzer v. MacDonald, Colo., 454 P.2d 928; Bates v. Stagg, 157 Colo. 456, 404 P.2d 530.
In deciding a motion for a directed verdict at the close of a plaintiff's case, the only consideration for the court is whether the plaintiff's evidence, including every legitimate inference which may be drawn from it, and disregarding all conflicting evidence or inference, is sufficiently material and substantial to justify a finding of negligence. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353.
The evidence, if considered most favorably to the plaintiffs, established that Mrs. Chisholm was negligent in turning on the sprinkler system and leaving it unattended for approximately seventeen hours. The evidence further established that the flooding of plaintiffs' house was caused by water coming from the sprinkler system. Under these circumstances, the question of causation was one of fact for the jury, which could properly have concluded that the negligence of Mrs. Chisholm was the proximate cause of the injury.
The fact that some of the water in plaintiffs' home may have come from a break in the sprinkler system does not, as a matter of law, relieve Mrs. Chisholm of liability. Her negligence consisted of turning the sprinkler system on and leaving it unattended. If it were foreseeable that such conduct might result in injury, then such negligence may be the proximate cause of the injury, even though defendant may not have been able to foresee the particular manner in which the sprinkler system would cause the injury. See Illinois Central Railroad Co. v. Siler, 229 Ill. 390, 82 N.E. 362, a case cited with approval in Esposito v. Christopher, Supra.
The issues of negligence and proximate cause should have been submitted to the jury.
As an additional reason for directing a verdict in favor of the Christophers, the court held that the relationship of Bruno Realty to the Christophers was that of an independent contractor and that, as a matter of law, the Christophers could not be liable for the torts of the independent contractor or its agent. One who contracts with an independent contractor is not liable for torts committed by the independent contractor or its agents. However, if the relationship of master and servant existed between the Christophers and Mrs. Chisholm at the time of the injury and in respect to the transaction out of which the injury arose, the Christophers are liable for the wrongful acts of Mrs. Chisholm under the doctrine of respondeat superior. Thayer v. Kirchhof, 83 Colo. 480, 266 P. 225.
Plaintiffs offered evidence that the Christophers gave Dorothy Chisholm the keys to their house. The house was vacant and Mrs. Chisholm checked it every day, changed the position of the drapes, and turned the lights on and off so that the house would appear occupied. Mrs. Chisholm watered the lawn and had the grass cut. In maintaining the Christophers' property, Mrs. Chisholm was performing services for the Christophers as well as for the realty company. Under these circumstances the relationship between the Christophers and Dorothy Chisholm was a question of fact which should have been submitted to the jury for its determination on proper instruction.
The judgment is reversed and the cause remanded for a new trial on all issues.
DUFFORD and PIERCE, JJ., concur.