David Allen Co., Inc. v. Benton

• Decision Date: 21 November 1990
• Docket Number: No. S90G0427,S90G0427
• Citation: 398 S.E.2d 191,260 Ga. 557
• Parties: DAVID ALLEN COMPANY, INC. v. BENTON.
• Court: Georgia Supreme Court

Page 191

398 S.E.2d 191

260 Ga. 557

DAVID ALLEN COMPANY, INC. v. BENTON.

No. S90G0427.

Supreme Court of Georgia.

Nov. 21, 1990.

Jordon D. Morrow, Barrow, Sims, Morrow & Lee, Savannah, for David Allen Co., Inc.

James Edward McAleer, Downing, McAleer & Gaskin, Savannah, Kent T. Stair, Webb, Carlock, Copeland Semler & Stair, Atlanta, William T. Hudson, Mark H. Johnson, Downing, McAleer & Gaskin, Savannah, for Benton.

BENHAM, Justice.

Benton was injured when she tripped on a loose brick "paver" in a sidewalk constructed by David Allen Company, Inc. (hereinafter "DAC") as a subcontractor pursuant to plans provided by the general contractor. She sued DAC and the general contractor, alleging as to DAC that it was negligent in failing to cement the pavers in place and that the sidewalk was imminently and inherently dangerous and a nuisance per se. On the strength of evidence showing without contradiction that DAC constructed the sidewalk in strict accordance with plans supplied to it, that it had no control over those plans, and that the work was approved and accepted by the general contractor and the owner, the trial court, citing PPG Industries v. Genson, 135 Ga.App. 248(2), 217 S.E.2d 479 (1975), granted DAC's motion for summary judgment. In Benton v. David Allen Co., 193 Ga.App. 789, 388 S.E.2d 878 (1989), the Court of Appeals reversed that judgment, holding that it was compelled to do so by this court's decision in Powell v. Ledbetter Bros., Inc., 251 Ga. 649(3), 307 S.E.2d 663 (1983), which applied an "inherently dangerous work" exception to the general rule that a contractor whose work is accepted by the owner is exempted from liability to third parties. We granted the writ of certiorari to decide whether the fact that the finished work which a contractor produces is inherently dangerous to third persons creates an exception to the rule that a contractor which performs a contract in accordance with plans supplied to it, which is not negligent in its performance, and which produces work which is accepted by the owner, is insulated by that acceptance from liability to third parties.

There have historically been two rules regarding the liability of contractors whose work has been accepted by the owner, one rule for a contractor who negligently performs, another for a contractor who is not negligent. The two rules are well set out in the opinion of the Court of Appeals in the present case. The significant difference between the two rules is that while there are several exceptions which apply to the contractor who is negligent in following the plans supplied to it, as to the contractor who accurately follows the plans supplied, there is only one exception. The exceptions applying to the negligent contractor are "where the work is a nuisance per se, or inherently or intrinsically dangerous ... [, or] so negligently defective as to be imminently dangerous to third persons." PPG Industries v. Genson, supra at 250, 217 S.E.2d 479. As to the contractor who follows plans without negligence, there is one recently established exception: a contractor who is an expert in the design of the type of work being done may not ignore defects in the design from which it is to work. See Shetter v. Davis Bros., Inc., 163 Ga.App. 230, 293 S.E.2d 397 (1982).

We agree with the Court of Appeals that this case is indistinguishable from Powell, supra: it has been established without question that the contractor complied in every regard with the plans provided to it, but there is an unrefuted allegation that the work was inherently dangerous to third persons. The Court of Appeals was, therefore, bound to follow Powell as precedent. However, upon reflection, we are of the opinion that it is the better policy to retain the distinction between the treatment of negligent contractors and that of nonnegligent contractors. We hold, therefore, that where a contractor who does not hold itself out as an expert in the design of work such as that involved in the controversy, performs its work without negligence, and the work is approved and accepted by the owner or the one who contracted for the work on the owner's behalf, the contractor is not liable for injuries resulting from the defective design of the work. The exceptions for inherently or intrinsically dangerous work, for nuisances per se, and for work so negligently defective as to be imminently dangerous to third persons, apply in cases where the contractor is guilty of negligence in the performance of its work. To the extent that Powell v. Ledbetter Bros., Inc., supra, holds otherwise, it is overruled.

Applying our holding to the facts of the present case requires that the judgment of the Court of Appeals must be reversed: the trial court's grant of summary judgment to DAC was correct and must be affirmed.

Judgment reversed.

All the Justices concur, except WELTNER, BELL and HUNT, JJ., who dissent.

WELTNER, Justice, dissenting.

1. We ought not to overrule Powell v. Ledbetter Brothers, Inc., 251 Ga. 649, 307 S.E.2d 663 (1983), without good reason. There we held:

There are well recognized...