Summary
holding that questions of novel impression should not be decided on demurrer
Summary of this case from Nichols v. State Farm Mutual Auto. Ins. Co.Opinion
19731
December 3, 1973.
Messrs. Pritchard, Myers, Morrison Bloom, of Charleston, for Appellants, cite: As to a developer-subdivider's being liable to a homeowner in its subdivision for damage sustained by the latter from flooding caused by the former's negligent failure to provide adequately for drainage of surface water: 77 Cal.Rptr. 633; 251 S.C. 112, 160 S.E.2d 560, at 561; 377 P.2d 897; 329 P.2d 474; 269 Cal.App.2d 224, 74 Cal.Rptr. 749; 255 S.C. 517, 180 S.E.2d 206; 252 S.C. 202, 166 S.E.2d 173; 251 S.C. 128, 161 S.E.2d 81; 254 S.C. 407, 175 S.E.2d 792; 247 S.C. 267, 146 S.E.2d 875; 256 S.C. 490, 183 S.E.2d 321; 90 N.W.2d 873; Code of Laws of South Carolina, 1962, Sec. 10-318; 37 Am. Jur. 2d, Fraud and Deceit, Sec. 160, at page 219; Restatement of the Law of Torts, 2d Ed., Sec. 402a; Restatement of the Law of Torts, 3d Ed., Sec. 353; The Law of Torts (4th Ed., 1971), Sec. 104 (page 682).
Messrs. Bernstein, Halio Manos, of Charleston, for Respondent, cite: As to a complaint, which alleges that a developer/subdivider, who prepared and sold lots to a builder, on which lots, homes were subsequently built by the builder and then sold to third parties, not stating a cause of action by the third parties against the subdivider of the land when it alleges that the subdivider negligently failed to provide drainage within and from the subdivision: 251 S.C. 128, 161 S.E.2d 81; Sec. 353 of the Restatement of the Law of Torts, 3rd Ed.
December 3, 1973.
In these three actions it appears from the complaints that College Heights Subdivision acquired title to a tract of land in the northwest portion of Charleston County, prepared plans for the development of the subdivision of the said tract and pursuant thereto had it surveyed and platted. It is also alleged that during the 1971 summer months, rain and surface waters had not properly drained within the subdivision and had on occasions backed up and risen in said subdivision, thereby damaging their homes and the personal property therein. It was further alleged that the backing up of the rain and surface water within the subdivision and the flooding of the lots and residences was directly and proximately caused by the negligent and wilfulness of the respondent in failing and omitting to provide adequately for the drainage of the rain and surface water within and from said subdivision.
Richard S. Vaden and Geraldine J. Vaden, Sarah G. Fox, and Edgar Charles Worley, the appellants herein, allege in their separate complaints that each of them had purchased from the respondent, the developer-subdivider, a lot and a house thereon and upon consummation of the said purchase each of the appellants moved into and occupied the respective houses as a residence.
The respondent demurred to each of the complaints upon the ground that they did not state facts sufficient to constitute causes of actions, Section 10-642(6) of the Code. The demurrers came on for a hearing before The Honorable Theodore D. Stoney, Judge of the Charleston County Court. At the hearing the appellants acknowledged that they had not purchased their lots from the respondent but from a person who was a builder-vendor, who had purchased the lots from the respondent.
The trial judge issued his order sustaining the demurrers to complaints. The appellants prosecute an appeal from this ruling.
The question to be decided is whether the respondent, the developer-subdivider, is liable to the appellants, who had purchased their homes and lots in the subdivision from a builder-vendor, a grantee of the subdivider, for the negligent failure to adequately provide for the drainage of surface water.
We are asked by the appellants only to decide on the basis of the pleadings a question of clearly novel impression in this jurisdiction. The ____ announced in the case of Springfield v. Williams Plumb. Supply Co., 249 S.C. 130, 153 S.E.2d 184; and Revis v. Martin, 260 S.C. 347, 195 S.E.2d 715, is applicable here:
"To so hold would involve the decision, on demurrer, of important questions of novel impression, the decision of which could have far reaching effects. Under all of the circumstances and in justice to the parties, as well as future litigants, we think these questions should not be decided on demurrer."
In the instant case justice, not only to the litigants but to the general public, requires that the case be tried on the merits and the case be fully developed before we are called upon to decide the novel question presented.
The judgment of the lower court sustaining the demurrers of the respondent is reversed and these cases remanded thereto for trial on the merits.
Reversed and Remanded.
LEWIS, BUSSEY and BRAILSFORD, JJ., concur.
LITTLEJOHN, J., dissents.