Kapalczynski v. Globe Const. Co.

• Decision Date: 02 October 1969
• Docket Number: Docket No. 4578,No. 3,3
• Citation: 19 Mich.App. 396,172 N.W.2d 852
• Parties: Thomas KAPALCZYNSKI and Kathleen Kapalczynski, Plaintiffs-Appellants, v. GLOBE CONSTRUCTION COMPANY and Michigan Consolidated Gas Company, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 852

172 N.W.2d 852

19 Mich.App. 396

Thomas KAPALCZYNSKI and Kathleen Kapalczynski, Plaintiffs-Appellants, v. GLOBE CONSTRUCTION COMPANY and Michigan Consolidated Gas

Company, Defendants-Appellees.

Docket No. 4578.

Court of Appeals of Michigan, Division No. 3.

Oct. 2, 1969.

Released for Publication Dec. 30, 1969.

Donald G. Jennings, Manistee, for appellant.

Hathaway, Latimer, Clink & Robb, Muskegon, for Globe Constr. Co.

John E. Hart, Corner, Water & Oak, Mainstee, for Michigan Consolidated Gas Co.

Before LEVIN, P.J., and HOLBROOK and DANHOF, JJ.

LEVIN, Presiding Judge.

The plaintiffs, Thomas Kapalczynski and Kathleen Kapalczynski (husband and wife), commenced this action to recover damages resulting from injuries sustained by Kathleen Kapalczynski when she fell into a hole in a street in Manistee, Michigan. The hole was at an access point to gas transmission lines running under the street. The access point and the transmission lines are owned by defendant Michigan Consolidated Gas Company. ¹ Defendant Globe Construction Company had resurfaced the street in September, 1965, a little over a year before the date, November 10, 1966, on which Mrs. Kapalczynski was injured. The plaintiffs covenanted not to sue the city of Manistee before this action was commenced.

The trial judge granted a motion for accelerated judgment and dismissed the complaint. He ruled that the city was primarily liable and that the defendants had no contractual obligation to the plaintiffs. For purposes of this appeal, we assume the truth of the plaintiffs' pleaded allegations that Mrs. Kapalczynski's injuries were caused by the defendants' negligence.

The principal issue concerns the liability of a contractor after completion and acceptance of negligently done work. In many jurisdictions the accepted work doctrine has insulated a contractor from liability for foreseeable harm to third persons resulting from his negligent performance of a completed contract. The conceptual bases of this doctrine are the absence of privity of contract between the contractor and the third person, the third person's nonreliance on the contract between the defendant contractor and the owner, and the asserted lack of a 'proximate' causal connection because of the intervening negligence of the owner in accepting and thereafter maintaining the work.

Most courts have grafted exceptions to this rule of nonliability. Contractors have been held liable in cases where it was shown that the defective condition was imminently dangerous to life, or the contractor knew of the defect or willfully concealed such knowledge, or the condition created a nuisance, or the plaintiff's use was intended or anticipated or, as it was sometimes put, the plaintiff was 'impliedly invited.' ²

For reasons which we will now relate, we have concluded that the accepted work doctrine is not the law in Michigan and, accordingly, remand this case for trial. This conclusion is based on a series of cognate decisions establishing the right of injured persons to recover in products liability cases.

The leading case in Michigan (and a leading case in the law nationally) is Spence v. Three Rivers Builders & Masonry Supply, Inc. (1958), 353 Mich. 120, 90 N.W.2d 873, where a manufacturer of cinder building blocks was held accountable for property damage caused by defective blocks which had been used in the construction of the plaintiff's home. The Court reviewed the question before it to be (p. 128, 90 N.W.2d p. 877) 'whether we are going to continue to be hobbled by such an obsolete rule (privity) and its swarming progeny of exceptions.' The Court abandoned the privity requirement after a thorough re sume of its complex history and a review of the historic decision in MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F 696.

Three Rivers was followed by Manzoni v. Detroit Coca-Cola Bottling Company (1961), 363 Mich. 235, 109 N.W.2d 918; Barefield v. La Salle Coca-Cola Bottling Company (1963), 370 Mich. 1, 120 N.W.2d 786; Hill v. Harbor Steel & Supply Corporation (1965), 374 Mich. 194, 132 N.W.2d 54, and, most recently, Piercefield v. Remington Arms Company, Inc. (1965), 375 Mich. 85, 133 N.W.2d 129, where an innocent bystander, injured when the barrel of a shotgun exploded because of a claimed defect in the ammunition used, was allowed to proceed to trial against the manufacturer of the ammunition, and the wholesaler and retailer. In a cogent opinion summarizing the law developed in the cited cases, the Piercefield Court stated that an injured plaintiff may recover upon proof of (pp. 98, 99, 133 N.W.2d p. 135) 'a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains.' ³

Whether the accepted work doctrine has survived this emphatic rejection of the privity requirement in products liability cases, is, we believe, now a somewhat rhetorical question. ⁴

Although the accepted work doctrine is referred to in Benton Harbor Malleable Industries, Inc. v. Pearson Construction Co. (1957), 348 Mich. 471, 83 N.W.2d 429, the Court did not base its decision on that doctrine. The plaintiff (who sued as subrogee of a third person) had employed the defendant contractor to install a large complex machine in the plaintiff's plant. The plaintiff had supervised the installation of the machine with bolts that it supplied. The Supreme Court ruled (p. 481, 83 N.W.2d 429) that the contractor was not liable for an injury which occurred when one of the devices broke loose from its moorings because (1) there was no proof that the defendant was negligent, (2) the plaintiff's negligence in failing to inspect the machine was the cause of the injury ⁵ and (3) plaintiff could not hold the defendant responsible for fastening the device with bolts furnished by, and inserted under, plaintiff's orders and instructions. ⁶

In Benton Harbor, the plaintiff conceded that the (p. 479, 83 N.W.2d p. 432) 'general rule is that an independent contractor is not liable for injuries to third parties, where he has completed the work and turned it over to contractee, but claim(ed) there is an exception * * * where * * * defendant's work was so negligently performed as to be imminently dangerous to third parties.' The concession of the Benton Harbor plaintiff that the accepted work doctrine is the 'general rule' means that the question whether the accepted work doctrine is part of our jurisprudence was assumed, not decided, in Benton Harbor. ⁷

In Sitta v. American Steel & Wire Division of U.S. Steel Corp. (CA 6, 1958), 254 F.2d 12, a products liability case involving a defective excavating machine, Benton Harbor was interpreted not as a departure from the modern rule eliminating the requirement of privity but as a case where the contractor did not cause the injury. Benton Harbor's precedential value is further undermined by the fact that 2 of the cases which it cites have now been overruled; both New Jersey and New Mexico have now adopted the so-called modern rule. ⁸

A final reason for concluding that the accepted work doctrine is not part of our law is its overwhelming rejection in other jurisdictions. ⁹ Most courts which have recently considered the question have concluded that there is no basis for a distinction between products liability and contractor's liability. The distinctions often advanced to justify a different rule of law for contractors than the rule now almost universally applicable to manufacturers, such as the lack of a standard product, the greater difficulty in finding defects in a contractor's 'special' job, the more thorough inspection given a contractor's work, and the greater time lapse between construction and injury, have been treated simply as problems of proof in individual cases rather than justifications for a different rule of law. Rather than perpetuate the quagmire of exceptions to the accepted work doctrine, once also characteristic of the products liability sector, these courts chose fully to accept the MacPherson precedent--a resolution advocated by well-regarded commentators. ¹⁰

In this connection the recent decision of our Supreme Court in Hill v. Harbor Steel & Supply Corp., Supra, is particularly relevant. The estate of a workman who lost his life when a manifold welding unit exploded was allowed to maintain an action against the contractor that 'designed and built' the unit for the workman's employer. The unit, thus, was not a 'standard' product, it was a 'special' job; it could have been more thoroughly inspected. The unit had been delivered to the deceased workman's employer 9 months before the explosion. Yet the third person was allowed to recover for a loss caused by the contractor's negligence.

Several of the opinions of other courts, concerning factual situations analogous to the case at bar, are worthy of detailed discussion. In Strakos v. Gehring (Tex.1962), 360 S.W.2d 787, a pedestrian was injured when he stepped into a hole left unfilled alongside a road. Both the contractor employed by the State of Texas to resurface the road and the contractor who was to do the necessary dirt work were named as defendants. The court emphasized that (p. 790):

'Our rejection of the 'accepted work' doctrine is not an imposition of absolute liability on contractors * * *. The effect of our holding is to bring (the contractor) within the general rules of tort litigation, where the jury will resolve the basic questions of negligence and proximate cause, subject to the usual guidance and review by the trial and appellate courts.'

The court observed that, except where reasonable minds cannot differ, the issues of intervening negligence and causation are to be resolved by the trier of fact.

In Baker v. Fryar Plumbing & Heating Co. (1966), 77 N.M. 257, 421 P.2d 784, when the defendant contractor completed his work a hole was left near the curb of a roadway. The plaintiff stepped into the...