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Fine v. Mayor & Council of Wilmington

Superior Court of Delaware, New Castle County

January 14, 1953

FINE
v.
MAYOR & COUNCIL OF WILMINGTON.

Action for damages to certain personal property allegedly caused by the bursting of a water meter and the resulting leakage of water into plaintiff cellar. Defendant moved to dismiss for failure to state a claim upon which relief could be granted. The Superior Court, Carey, J., held, inter alia, that certain counts of the complaint were sufficient.

Order in accordance with opinion.

[47 Del. 540] Stewart Lynch and Florence E. Freeman, Wilmington, for plaintiff.

Herbert B. Warburton, Wilmington, for defendant.

CAREY, Judge.

Defendant's brief raises six questions which may be concisely stated in this manner: (1) Is the supplying of water to a consumer a governmental, or a corporate, function? (2) Was there a duty of inspection owed by defendant to plaintiff? (3) Is defendant responsible to plaintiff for acts or omissions of the Board of Water Commissioners or of the employees of that Board? (4) Does the doctrine of res ipsa loquitur apply to this case? (5) May this plaintiff sue in contract for breach of a warranty when he was not a party to the contract? (6) Is water passing through a meter and pipes in a consumer's cellar under high pressure, such a dangerous instrumentality as will impose an absolute liability in the event to damages caused by its escape?

Page 394

Defendant's first contention is directed to all four counts. It is that the operation of a waterworks system is a governmental function. This statement may or may not be true as to such an operation for the purpose of fire protection and certain other public purposes. It is not true, however, as to the distribution of water for private uses of inhabitants of the municipality. This is the rule which has been followed in almost every reported case.56 Am.Jur. 935, 18 McQuillan, Municipal Corporations (3d ed.) 423. The only exception cited in the briefs is Patterson v. Little Rock, 202 Ark. 189, 149 S.W.2d 562. The majority rule is the more reasonable one, in my opinion, and will be accepted as the law of this State. I hold that the supplying [47 Del. 542] of water to this plaintiff was an exercise of a corporate function. For this reason, Kelley v. City of Wilmington, 5 W.W.Harr. 9, 156 A. 867, has no application here.

Defendant's next contention is directed to the first count of the complaint. This count charges negligence in four particulars: (a) failure of defendant to inspect the mater before installing it; (b) failure of defendant at the time of its installation to determine its adequacy to hold and control water; (c) failure of defendant to inspect the meter after installation from time to time to determine its continued ability to hold and control the water; (d) knowingly subjecting the meter to water pressures in excess of the manufacturer's fixed limit. Defendant attacks this count on the ground that it shows no duty owed by defendant to plaintiff, that is, that there was no duty on defendant's part to inspect the meter before or after installation, nor did any such duty arise until the condition which produced the damage had actually been called to defendant's attention or had existed for such a period of time as to constitute constructive notice. For the purpose of considering this contention under the present motion to dismiss, the allegations of fact in the complaint must be viewed in the light most favorable to plaintiff.

According to these averments, the defendant through its ‘ Water Department’ operates a water system serving residents of the City, as well as residents of certain suburban areas, including a subdivision known as ‘ Deerhurst’ . In January 1946, defendant purchased a water meter from a manufacturer and installed it in the property now owned and occupied by the plaintiff in Deerhurst. The installation was completed in November 1946. On December 3, 1950, the meter ‘ broke’, ‘ cracked’, ‘ burst’ or ‘ shattered’, causing water to leak into the premises in large quantities, thereby damaging certain merchandise and equipment therein. The defendant, ever since the meter was installed, had had exclusive possession and control of the meter, the water passing through it and the pressures of that water.

I do not understand the present contention to be directed at the fourth specification of negligence; obviously, the [47 Del. 543] existence or non-existence of a duty to inspect has nothing to do with the duty to refrain from knowingly subjecting the meter to pressures in excess of its capacity. As to the first three specifications of negligence, it is difficult to see how the Court, at the present stage of this case, can determine the precise duty of care owed by the defendant. Certainly, it cannot now say that no duty of inspection existed. The writer makes no pretense to any knowledge of the customs and practices of ordinarily prudent and careful installers-of-water-meters. It may be common practice for them to examine meters minutely before installation and to test them thoroughly after installation. It may be that such installation and/or test would have disclosed the very defect, if any, which caused this particular meter to burst. Again, it may be common practice for water suppliers to inspect meters ‘ exclusively controlled’ by them at periodic intervals, and that such inspection would have brought to light the flaw, if any, in this meter. Determination of these matters must await introduction of evidence into the record.

Defendant's third contention is that the City is not responsible for negligent acts of the Board of Water Commissioners or its employees, that Board having been created directly by the Legislature. The argument here is that the Board is completely

Page 395

beyond the control of the city corporation, and that the doctrine of respondeat superior has no ...


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