Davis v. Baugh Indus. Contractors, Inc.
| Citation | 150 P.3d 545,159 Wn.2d 413 |
| Decision Date | 18 January 2007 |
| Docket Number | No. 76696-7.,76696-7. |
| Court | Washington Supreme Court |
| Parties | Tami DAVIS, as Personal Representative of the Estate of Alan Davis, deceased; and as Trustee for Tami Davis and Melissa Davis for the Wrongful Death of their Father, Alan Davis, Appellants, v. BAUGH INDUSTRIAL CONTRACTORS, INC., a Washington corporation; Selpeco Resources, Inc. and Selpeco Resources, Inc.—A Knight Piesold Company, Washington corporations; Tucci & Sons, Inc., a Washington corporation; E.J. Rody & Sons, Inc., a Washington corporation, Gray & Osborne, Inc., a Washington corporation; Taiheiyo Cement Corporation and Taiheiyo Cement U.S.A., Inc., foreign corporations; Weyerhaeuser Company and Weyerhaeuser Real Estate Company, Washington corporations; and "Unknown Business Entities I-X," jointly and severally, Respondents. |
Philip Albert Talmadge, Emmelyn Hart-Biberfeld, Talmadge Law Group PLLC, Tukwila, Scott Frederick Lundberg, Seattle, for Appellants.
Sean Edward Michael Moore, Francis Stanley Floyd, Amber L. Pearce, Floyd & Pflueger PS, Frank Joseph Steinmark, Chism Thiel McCafferty Campbell & Steinmar, Tracy A. Duany, Mullin Law Group PLLC, William Walter Spencer, Murray Dunham & Murray, Randall Robert Steichen, Dorsey & Whitney LLP, Dave Arnold Matison, Seattle, Brendan Jay Peters, Bainbridge Island, Shellie McGaughey, Gulliford McGaughey & Dunlap PLLC, Bellevue, for Respondents.
Bryan Patrick Harnetiaux, Debra Leigh Williams Stephens, Spokane, for Amicus Curiae Washington State Trial Lawyers Association Foundation.
¶ 1 We are asked whether the common law doctrine of completion and acceptance, which shields contractors from liability for negligent work after that work has been completed and accepted by the property owner, bars this suit against Baugh Industrial Contractors, Inc., for negligent construction of a pipeline. Finding that this doctrine is outmoded, incorrect, and harmful, we now join the 37 states that have abandoned it. We reverse the superior court order granting summary judgment and remand for further proceedings.
¶ 2 On October 12, 1992, Baugh entered into a contract to build a network of subterranean pipes for a processing facility belonging to Glacier Northwest. In turn, Baugh hired E.J. Rody & Sons, Inc. (Rody) to install the on site utilities and underground piping for the facility. In the course of its work, Rody assembled and installed high density polyethylene pipes and buried the piping underground. Rody had exclusive control over the installation. The project was substantially completed in April 1997 and Glacier accepted the work. Shortly thereafter, Glacier began operating the facility.
¶ 3 In December 2000, after observing that a pond had formed, Glacier suspected a leak in one of the underground pipes. Alan Davis was the foreman of the crew assigned by Glacier to excavate the area and find the leak. While the pipeline was still covered with several feet of dirt, Davis entered the excavated hole to try to pinpoint the leak. Tragically, several cement blocks, weighing between 1,500 and 1,800 pounds each, fell into the hole when a nearby wall collapsed. One of the blocks crushed Davis' chest and pinned him to the ground. Davis later died of his injuries. Evidence suggested that one of the high density polyethylene pipes, which had a useful life of up to 100 years, had failed. This might have been because of a gouge or dent in the pipe.
¶ 4 Tami Davis, Alan's daughter and personal representative of his estate, filed this negligence suit against Baugh among others. The trial court granted summary judgment for Baugh on the ground that the completion and acceptance doctrine relieved Baugh of liability for negligence after the work was completed and accepted by the property owner. The trial court also struck portions of a declaration of Davis' expert. On direct appeal from the superior court, Davis argues that the trial court erred. We agree and reverse.
¶ 5 Trial court rulings in conjunction with a motion for summary judgment are reviewed de novo. Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998).
¶ 6 Under the completion and acceptance doctrine, once an independent contractor finishes work on a project and the work has been accepted by the owner, the contractor is no longer liable for injuries to third parties, even if the work was negligently performed. Historically, after completion and acceptance, the risk of liability for the project belonged solely to the property owner. This court has not addressed this doctrine in over 40 years and, in the meantime, 37 states have rejected it. See Emmanuel S. Tipon, Annotation, Modern Status of Rules Regarding Tort Liability of Building or Construction Contractor for Injury or Damage to Third Person Occurring After Completion and Acceptance of Work; "Completed and Accepted" Rule, 74 A.L.R.5th 523, 557-61 (1999); Peters v. Forster, 804 N.E.2d 736, 741 (Ind.2004). Under the modern, Restatement approach, a builder or construction contractor is liable for injury or damage to a third person as a result of negligent work, even after completion and acceptance of that work, when it was reasonably foreseeable that a third person would be injured due to that negligence. Restatement (Second) of Torts §§ 385, 394, 396 (1965).1
¶ 7 We join the vast majority of our sister states and abandon the ancient completion and acceptance doctrine. See In re Rights to Waters of Stranger Creek, 77 Wash.2d 649, 653, 466 P.2d 508 (1970). We find it does not accord with currently accepted principles of liability because it was grounded in the long abandoned privity rule that a negligent builder or seller of an article was liable to no one but the purchaser. See, e.g., Thornton v. Dow, 60 Wash. 622, 635-36, 111 P. 899 (1910) (); MacPherson v. Buick Motor Co., 217 N.Y. 382, 397, 111 N.E. 1050 (1916). This approach to analyzing liability was first rejected in MacPherson. There, Judge (and later Justice) Benjamin N. Cardozo's watershed opinion explained that:
[w]e have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.
MacPherson, 217 N.Y. at 390, 111 N.E. 1050. Cardozo has prevailed, and the privity requirement in tort law has been abandoned not just in Washington but in all United States jurisdictions in the decades since MacPherson. See Stuart v. Coldwell Banker Commercial Group, Inc., 109 Wash.2d 406, 418, 745 P.2d 1284 (1987).
¶ 8 A second, oft-cited rationale for this doctrine is the theory that the owner's negligence in failing to remedy a dangerous condition upon the land is an intervening cause, which breaks the chain of causation and cuts off the contractor's liability. Thornton, 60 Wash. at 636, 111 P. 899. This rationale fails as well because Washington has long since abandoned this theory of proximate cause, sometimes called the "last wrongdoer" rule. See, e.g., Maltman v. Sauer, 84 Wash.2d 975, 982, 530 P.2d 254 (1975); Olson v. Gill Home Inv. Co., 58 Wash. 151, 157-58, 108 P. 140 (1910); see also Prosser and Keeton on the Law of Torts 304 (W. Page Keeton ed., 5th ed. 1984) (). An intervening cause only breaks the chain of causation if the intervening event is so unexpected that it falls outside the realm of the reasonably foreseeable. Maltman, 84 Wash.2d at 982, 530 P.2d 254. Whether an intervening act breaks the chain of causation is a question for the trier of fact. Id.
¶ 9 The completion and acceptance doctrine is also grounded in the assumption that if owners of land inspect and accept the work, the owner should be responsible for any defects in that accepted work. See Pierce v. ALSC Architects, P.S., 270 Mont. 97, 890 P.2d 1254, 1262 (1995). While this assumption may have been well founded in the mists of history, it can no longer be justified. Id. Today, wood and metal have been replaced with laminates, composites, and aggregates. Glue has been replaced with molecularly altered adhesives. Wiring, plumbing, and other mechanical components are increasingly concealed in conduits or buried under the earth. In short, construction has become highly scientific and complex. Landowners increasingly hire contractors for their expertise and a nonexpert landowner is often incapable of recognizing substandard performance.
¶ 10 Our legislature has adopted a statute of repose to provide predictability and limit contractor liability. RCW 4.16.310. The statute of repose terminates a negligence claim six years after "substantial completion of construction," even if the injury caused by contractor negligence has not yet occurred. Id. This statute of repose is a much clearer and simpler way to protect contractors from a long period of uncertainty.
¶ 11 The completion and acceptance doctrine is harmful because it is unnecessarily complex and difficult for courts to apply. The doctrine is nearly subsumed by the many exceptions which are necessary to avoid inequitable results. See Emmanuel S. Tipon, Annotation, Modern Status of Rules Regarding Tort Liability of Building or Construction Contractor for Injury or Damage to Third Person Occurring After Completion and Acceptance of Work: Exceptions to "Completed and Accepted" Rule, 70 A.L.R.5th 261, 282 (1999).
¶ 12 The doctrine is also harmful because it weakens the deterrent effect of tort law on negligent builders. By insulating contractors from liability, the completion and acceptance doctrine increases the public's exposure to injuries caused by negligent design and construction of improvements to real property...
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