Motion Picture Herald (Mar-Apr 1945)

How to Protect Yourself Against Damage Suits Due to Building Defects $ Under what conditions is the exhibitor liable for injuries due to a workman's negligence? How can he avoid that liability? Here in non-legal terms is what the courts say to answer these and related questions By LEO T. PARKER several actual instances have recently come to my personal attention in which theatre owners have lost important law suits filed by injured patrons simply because they neglected to make protective contracts defining the legal obligations of architects, contractors or employes. First, it is interesting to observe that modern courts consistently hold that failure of a property owner to employ an architect to prepare plans and specifications for erection of a theatre building greatly increases the owner's liability, irrespective of the character of damages resulting from defective construction. In other words, a faulty construction may not become apparent for several years but the theatre owner's liability for damages remains the same, if evidence is introduced proving that the defect causing the injury may have been eliminated by supervision of a competent architect. Modern higher courts hold that a theatre owner is relieved of liability in damages for injuries resulting from defective construction, whether or not the architect was negligent in preparing the plans or supervising the construction work, providing the architct is competent. For example, in the leading case of Burke v. Ireland (59 N. E. 914), it was disclosed that the owner of a lot employed a competent architect to draw plans and specifications and supervise the construction of a building on the property. Unknown to the parties, an abandoned cistern was concealed in the lot, and the contractor employed by the property owner built the foundation for the center column of the building on the edge of the old cistern. The foundation was not inspected by the architect, and as a result of this negligence the building collapsed, causing the death of many persons. The dependents of the deceased persons filed suit for damages against the property owner. Although the lower court held the property owner liable, the higher court reversed this verdict, saying: "In this case the owner was not competent himself to plan the building which he desired to erect. He was not competent to construct or superintendent the construction. If he had attempted to do any of these things, it may be that he could be held responsible for the results of the accident." And also, in a 1944 higher court decision (55 N. E. [2d] 221) it was shown that a patron was injured in a theatre and he sued for damages, alleging that the theatre structure was defective and dangerous. The higher court held the theatre owner not liable, because the theatre owner had used "ordinary care" to employ a competent architect to design and supervise the construction of the modern theatre building. And, again see Fox v. Ireland (61 N. Y. S. 1061), where it was disclosed that a property owner entered into a contract with a contractor for the construction of a large theatre building which was to be erected according to the plans and specifications prepared by an architect, who also agreed to superintend its construction. Later the interior of the building collapsed, due to a weak foundation laid upon insecure ground, and seriously injured a person, who sued the theatre owner for damages. The testimony proved that the architect did not inspect the work and that this neglect was the proximate cause of the injury. The theatre owner proved that he relied entirely upon the efficiency of the architect, and that he did not interfere with the discharge of the architect's duties. In view of this testimony, the court held the theatre owner not liable, saying: "This case is to be disposed of by considerations relating to the competency of the architect and the right of the defendant (owner) to rely upon the skill and fidelity of the architect." Notwithstanding the above explained law, a theatre owner cannot avoid liability on proof of employment of an architect unless the testimony proves that the architect is "competent." Therefore, all theatre owners should employ architects who are recognized by the authorities, and by experienced contractors, as being competent. ARCHITECT SHOULD HAVE FULL CONTROL Modern higher courts consistently hold that where the theatre owner employs an architect to prepare plans and specifications and supervises the work, any negligent and injurious act of the theatre owner, principal contractor, or subcontractor may result in liability of the theatre owner. For illustration, in Sheridan v. Rosenthal (201 N. Y. S. 168) it was shown that a theatre building collapsed because of defects in the steel work installed by a subcontractor who was employed by the theatre owner, who acted as the general contractor. Testimony proved that the theatre owner had employed an architect to draw the plans and had filed them in the municipal building department. However, the theatre owner personally supervised the construction work. The theatre owner attempted to avoid liability by contending that he had employed a competent architect to prepare the plans and specifications. Although the lower court held the theatre owner not liable, the higher court reversed this decision saying: "... The rule of nonliability of an owner of a building, who employs a competent and skillful architect, for faults or defects in design or plans, has no application to the facts of this case." Another important point of the law is that a theatre owner who fails to employ a competent architect cannot avoid liability for injuries, and other damages, caused by imperfect construction or collapse of a theatre building, by introducing testimony proving that he submitted his plans for approval to a municipal architect employed by the city building department. A case in point is Pitcher v. Lennon (42 N. Y. S. 156). It was disclosed in this that during the erection of a building large portions of it collapsed and killed a workman because the weight was improperly distributed upon granite blocks used as an upper foundation. The accident happened when the work, being performed by contractors, was under the supervision of the owner. The dependents of the deceased workman filed suit against the owner for damages. The owner attempted to avoid liability by contending that he had exercised reasonable care when he submitted his plans to the municipal building department architect, who approved them. However, the higher court held the owner liable in damages. COMPETENT SUPERVISION AVOIDS LIABILITY The above higher court decisions indicate that employment of an architect to prepare plans and specifications, and supervise the construction work is necessary to avoid damage liability for defective structure. However, many higher courts have held that if an architect is employed to prepare the plans and specifications, the theatre owner may without liability employ any person competent to supervise the work. For illustration, in Hawke v. Brown (50 N. Y. S. 1032) it was shown that a property owner employed an architect to prepare plans, etc., for certain alterations of a building. Also, the building owner authorized a real estate broker to employ a contractor to perform the work. In the subsequent contract the contractor {Continued on page 25) 10 BETTER THEATRES, MARCH 3, 1945