Suneson v. Holloway Const. Co., APAC-A

• Decision Date: 27 May 1999
• Docket Number: No. 98-846,APAC-A,98-846
• Citation: 337 Ark. 571,992 S.W.2d 79
• Parties: Craig SUNESON, Appellant, v. HOLLOWAY CONSTRUCTION COMPANY,rkansas, Inc., McClinton-Anchor Division and Highway Valets, Inc., Appellees.
• Court: Arkansas Supreme Court

Page 79

992 S.W.2d 79

337 Ark. 571

Craig SUNESON, Appellant, v. HOLLOWAY CONSTRUCTION COMPANY, APAC-Arkansas, Inc. McClinton-Anchor Division and Highway Valets Inc., Appellees.

No. 98-846.

Supreme Court of Arkansas.

May 27, 1999.

Dewey Moore, Little Rock, for appellant.

Friday, Eldredge & Clark, by: Donald H. Bacon, Little Rock, for appellee Holloway Construction Company.

Davis, Cox & Wright PLC, by: Constance G. Clark, Little Rock and Don A. Taylor, Fayetteville, for appellee APAC-Arkansas, Inc., McClinton-Anchor Division.

Anderson, Murphy & Hopkins, L.L.P., by: Overton S. Anderson and Scott D. Provencher, Little Rock, for appellee Highway Valets, Inc.

TOM GLAZE, Justice.

This appeal is a tort case involving a legal principle of major importance called the "accepted-work doctrine." One of Craig Suneson's points for reversal is that the doctrine is outdated and that this court should repudiate it. Our court has jurisdiction of this appeal under Ark. Sup.Ct. R. 1-2(b)(5).

The facts leading to Suneson's accident and injuries and to the filing of this case are largely undisputed. At approximately 5:40 a.m. on February 24, 1992, Suneson was driving a tractor-trailer north on Highway 71 near Bentonville in heavy fog. He was driving in the outside lane, using the solid white outside line as a guide when he found himself in exit lane 72. Because he believed he could not return safely to the main highway, Suneson stayed in the exit ramp which was on an incline and curve. His truck overturned, and Suneson suffered a broken neck, rendering him a quadriplegic.

In February 1995, Suneson filed suit against three defendant contractors, Holloway Construction Company (Holloway); APAC-Arkansas, Inc., McClinton-Anchor Division (APAC); and Highway Valets, Inc. (Valets), alleging each of them was negligent in causing latent and hazardous defects at the exit 72 ramp where Suneson's truck overturned. ¹ Holloway and APAC each had a contract with the Arkansas Highway and Transportation Department (AHTD) to perform construction work on the exit 72 ramp. Holloway was granted a contract for project R90045 for the grading and structure portion completing Highway 71, and APAC received the contract for project R90071 for the base and surfacing, which included the pavement markings and markers. Holloway also did some surfacing work on exit ramp 72. Valets had a subcontract with APAC to perform certain striping and marking work. Suneson alleged that Holloway negligently failed to construct the exit curve as required by the plans and specifications, that APAC negligently constructed the base and surfacing portion of the exit curve, and that Valets negligently failed to place markings on the roadway at exit 72 as required by the Manual of Uniform Traffic Control Devices (MUTCD). The MUTCD was a part of the contract specifications. Suneson asserted the negligence of these defendant-contractors resulted in defects that proximately caused him not to be placed on notice of the approaching exit and caused him to drive his loaded tractor-trailer into the exit curve. ²

Valets filed a summary judgment motion asserting that the AHTD had accepted its work prior to Suneson's accident and that under the "accepted-work doctrine," it bore no liability to third parties for the condition of its work once the work was turned over to and accepted by the AHTD. Holloway and APAC joined in Valets' motion. Suneson filed a response, asserting the accepted-work doctrine should be repudiated, but if the doctrine is not overruled, the contractors' work had not been accepted by the AHTD under the terms of the parties' contracts. Suneson further claimed that, even if the accepted-work doctrine was applied, the contractors' work left the exit 72 ramp in a defective condition which was imminently dangerous or contained latent defects--two recognized exceptions to the doctrine.

After a hearing, the trial court granted summary judgment in favor of the contractors, Holloway, APAC, and Valets. Suneson brings this appeal, raising the same issues he argued at trial. However, if this court agrees with Suneson that the court should abandon the accepted-work doctrine, Suneson's other arguments need not be addressed. Thus, we will first consider whether to repudiate the doctrine.

Suneson initially emphasizes that the doctrine has its roots in an 1842 English case called Winterbottom v. Wright, 152 Eng. Rep. 402 (Ex. 1842), wherein a negligent contractor was shielded from liability for a third party's injuries because the contractor and third party were not in privity of contract. Suneson cites an early Connecticut case, Howard v. Redden, 93 Conn. 604, 107 A. 509 (1919), as typical of the early cases involving builders or contractors adhering to the Winterbottom rationale. In Howard, the court adopted a rule of proximate cause, holding that a contractor was not liable to a passerby injured when struck by a faulty cornice built by the contractor. The Howard court stated that the plaintiff's injury, which occurred after the contractor had completed the work, was due solely to the owner's failure to inspect and guard against the cornice's deterioration. The Connecticut court noted that although the contractor remained liable through privity after completion and acceptance of the work, the contractor's liability did not extend to third persons. The Howardcourt recognized the following three reasons supporting the accepted-work doctrine:

(1) The Winterbottom decision and its application of the doctrine of privity to cases in negligence;

(2) The owner alone was in control of the entity when the injury occurred; and

(3) The presumption that the owner had carefully inspected the work and knew of its defect before accepting. See also Minton v. Krish, 34 Conn.App. 361, 642 A.2d 18 (1994).

In 1977, the Connecticut Supreme Court in Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977), reversed its earlier Howard decision and concluded that a contractor could be liable to an injured third party even though the contractor's negligent work had been completed and the owner had accepted it. In doing so, the Connecticut court recognized the revolution in the law of negligence sparked by MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), and the fact that the MacPherson decision marked the demise of the privity-of-contract requirement in products cases and established the rule that a seller of a product is liable for negligence that may foreseeably injure another. Coburn, 378 A.2d at 602. The Coburn court further implicitly rejected the control theory and the theory of knowledge and acceptance the Howardcourt had previously used when applying the accepted-work rule. See also Minton, 642 A.2d at 21.

The Minton court, in explaining Connecticut's decisions departing from the accepted-work doctrine, stated as follows:

In rejecting the "completed and accepted" rule, our courts join the majority of jurisdictions. W. Prosser & W. Keeton, supra, § 104A; annot., 58 A.L.R.2d 891 (1958) (listing jurisdictions that have rejected the rule). We conclude that the "completed and accepted" rule has been repudiated in Connecticut and replaced with the rule of foreseeability as expressed in 2 Restatement (Second), Torts (1965) § 385: "One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others."

Minton, 642 A.2d at 21.

Suneson cites cases from other jurisdictions that have repudiated the accepted-work doctrine. See Saylor v. Hall, 497 S.W.2d 218 (Ky.1973); McDonough v. Whalen, 365 Mass. 506, 313 N.E.2d 435 (1974); Krisovich v. Booth, 181 Pa.Super. 5, 121 A.2d 890 (1956); Johnson v. Oman Const. Co., 519 S.W.2d 782 (Tenn.1975); Strakos v. Gehring, 360 S.W.2d 787 (Tex.1962); see also Thompson v. Coats, 274 Or. 477, 547 P.2d 92 (1976); Hunt v. Blasius, 74 Ill.2d 203, 23 Ill.Dec. 574, 384 N.E.2d 368 (1979); Totten v. Gruzen, 52 N.J. 202, 245 A.2d 1 (1968); Russell v. Arthur Whitcomb, Inc., 100 N.H. 171, 121 A.2d 781 (1956); Pierce v. ALSC Architects, P.S., 270 Mont. 97, 890 P.2d 1254 (1995); Lynch v. Norton Constr. Inc., 861 P.2d 1095 (Wyo.1993); Hanna v. Fletcher, 231 F.2d 469 (D.C.Cir.1956); Hankins v. Elro Corp., 149 Mich.App. 22, 386 N.W.2d 163 (1986); Pastorelli v. Associated Eng'rs, Inc., 176 F.Supp. 159 (D.R.I.1959); Kristek v. Catron, 7 Kan.App.2d 495, 644 P.2d 480 (1982); Annotation, Negligence of Building or Construction Contractor as Ground of Liability Upon His Part for Injury or Damage to Third Person Occurring After Completion and Acceptance of the Work, 58 A.L.R.2d 865, 891 (1958 & Supp.1994 & 1999) (citing cases in other jurisdictions supporting the view that a building or construction contractor is liable for injuries to, or the death of, third persons occurring after the completion of his work and its acceptance by the contractor where the work is reasonably certain to endanger third persons if negligently prepared or constructed). One authoritative treatise states its displeasure with the accepted-work rule in the following way:

In the case of builders and other contractors in construction work, a rule once prevailed that exonerated the contractor for injuries to third persons caused by defective construction but occurring after the employer had accepted the work. This will be recognized as an offspring of the privity rule and the last-wrongdoer rule. Both lines of holdings represent anachronistic and unwarranted exceptions to general negligence principles and are being progressively repudiated by the courts.

5 HARPER, JAMES & GRAY, THE LAW OF TORTS, § 28.10 ...