Banner v. Town of Dayton

On March 29, 1968, the Town of Dayton filed a complaint against defendant alleging that on October 8, 1956, the parties entered into a contract by which defendant was to supervise and provide engineering services for the construction and laying of a water line from the Tongue River, as the source, to Dayton; that all plans and specifications were either prepared or approved by defendant and all work done under his supervision; that commencing August 3, 1964, numerous leaks developed along the entire length of the line, the cause of which was electrolysis resulting from an improper type of pipe for existing soil conditions, or improper protection of the pipe against electrolysis, or improper laying of pipe, or a combination thereof; that defendant approved the type of pipe used, the method of its protection, and supervised and approved its laying; that defendant negligently failed and neglected to perform adequate soil resistivity tests to determine the soil conditions; that plaintiffs expense in attempting to seal the leaks amounted to $1,645.42; that plaintiff was required to replace the line in its entirety at an expense of $120,000; and that defendant was negligent in (1) failing to make the necessary soil resistivity tests to determine what type of pipe and coating or protection should be required for the soil conditions, (2) approving a type of pipe which - Page 302 was inadequate for the soil conditions, (3) approving the type of coating or protection placed on the pipe for the soil conditions, and (4) supervising and approving the laying of the pipe, including supervision and approval of the backfill methods ? seeking judgment for $121,645.42. Defendant answered, admitting the contract, the preparation or approval of all plans and specifications for the project, but claiming that all this was done as a result of consultations and conferences with plaintiff and that it had assumed all risks. Defendant alleged he performed various inspection services in connection with all work rendered; denied other matters; pleaded that the complaint failed to state a claim; and also alleged affirmatively that the claim was barred by §§ 1-16, 1-17, and 1-18, W.S. 1957 (statutes of limitations); that plaintiff had failed to take necessary and reasonable action to mitigate damages; and that he was not required to perform with respect to testing soil resistivity or any other services relating to protection of the system against electrolysis.