Lynch v. Norton Const., Inc.

• Decision Date: 25 October 1993
• Docket Number: No. 92-285,92-285
• Parties: Pamela LYNCH and Rick Lynch, Appellants (Plaintiffs), v. NORTON CONSTRUCTION, INC., a Wyoming corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1095

861 P.2d 1095

Pamela LYNCH and Rick Lynch, Appellants (Plaintiffs), v. NORTON CONSTRUCTION, INC., a Wyoming corporation, Appellee (Defendant).

No. 92-285.

Supreme Court of Wyoming.

Oct. 25, 1993.

H. Steven Brown of Brown & Raymond, P.C., Casper, for appellants.

Patrick J. Murphy and Scott E. Ortiz, Casper, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

GOLDEN, Justice.

Pamela and Rick Lynch (the Lynches) appeal the district court's grant of summary judgment to Norton Construction, Inc. (Norton) on the Lynches' claim of negligence. The district court found Norton owed no legal duty to the Lynches and was entitled to judgment as a matter of law.

We decline to adopt the accepted work doctrine urged by Norton, which would extinguish a contractor's liability to third persons upon the owner's acceptance of the contractor's work. We hold instead that a contractor does owe a duty of reasonable care to foreseeable users, even after an owner's acceptance of the contractor's work, and traditional negligence principles apply to questions of contractor liability. We affirm the district court's judgment, however, on the ground that no genuine issue of material fact exists with respect to the question of proximate cause, and Norton is entitled to judgment as a matter of law.

ISSUES

The Lynches present the following issue for our review:

Did the district court correctly grant summary judgment to a contractor in a negligent construction case in ruling the contractor had no duty to a user of the sidewalk?

FACTS

In the spring of 1988, the Stocktrail Elementary School in Gillette, Wyoming, added four annex buildings to accommodate additional students for the 1988-1989 school year. In early August, 1988, the school district determined it would need to install sidewalks between the main building and the annex buildings to provide easier pedestrian access to the buildings.

On August 9, 1988, the school district requested bids on the project from four local contractors. At the bid meeting, the school district presented each contractor with one page of plans and specifications for the sidewalk. The specification sheet included requirements that the sidewalk have a strength of 4,000 pounds per square inch; that six-inch by six-inch wire mesh be imbedded in the concrete for reinforcement; that expansion joints be installed in the concrete to help prevent cracking; and that the contractor remove the existing grass sod before pouring the concrete. The plans included no provisions for drainage, and the contractors were instructed to follow the natural slope of the terrain.

On August 10, 1988, the school district awarded the bid to Norton, who submitted the low bid for the project. Norton completed the project by the August 22, 1988 deadline; and at that time representatives of the school district accepted the work, informing Norton they were pleased with his workmanship and that his work complied with the school district's plans and specifications.

As designed and constructed, the sidewalk provided no drainage for the run-off from the natural sloping of the terrain. As a result, beginning in the first winter following the sidewalk's construction, an ice problem developed on the sidewalk. Water would accumulate on the sidewalk and freeze there, creating hazardous walking conditions.

On January 23, 1990, while working as a custodian at the Stocktrail Elementary School, Pamela Lynch slipped and fell on an icy spot on a sidewalk at the school. She injured her left arm leading to nerve damage called Reflex Sympathy Dystrophy Syndrome. Pamela Lynch's injuries have rendered her totally and permanently disabled, and she is unable to work.

For over a year after the school district accepted Norton's work, school personnel, including Pamela Lynch, knew of the ice problem on the sidewalk. Pamela Lynch's duties included shoveling the sidewalks and spreading salt and sand over the icy spots. At the school district's direction, to conserve materials, Pamela Lynch did not spread salt and sand over icy spots for her own safety; she was instructed to use the salt and sand only when children were on the premises. Several school employees, including Pamela Lynch, had slipped and fallen on the ice at the spot where Pamela Lynch fell again on January 23, 1990.

Having received several complaints about the icy condition of the sidewalk, the school principal had, nearly one year before Pamela Lynch's accident, submitted a work order to the school district maintenance department. The work order requested installation of a drainage system to allow water to drain appropriately instead of flowing over the sidewalks and freezing. The drainage system was not installed until eight months after Pamela Lynch's accident. Neither the school district nor school personnel from Stocktrail Elementary ever notified Norton of the drainage problem.

On December 30, 1991, Pamela Lynch filed a complaint against Norton, the contractor who built the sidewalk. Her complaint alleged that Norton's negligence in failing to provide drainage for the sidewalk caused her fall and subsequent disability. On September 10, 1992, Norton moved for summary judgment contending he owed no duty to the Lynches, and following a hearing on October 16, 1992, the district court granted Norton's motion for summary judgment.

STANDARD OF REVIEW

Summary judgment is proper when no genuine issues of material fact exist, and the prevailing party is entitled to judgment as a matter of law. Brown v. Avery, 850 P.2d 612, 614-15 (Wyo.1993). When reviewing the propriety of a grant of summary judgment, we review the record in the light most favorable to the party opposing the motion, giving that party all favorable inferences that can be drawn from the facts. Miller v. Campbell County, 854 P.2d 71, 75 (Wyo.1993); Abell v. Dewey, 847 P.2d 36, 39 (Wyo.1993). "Conclusory statements or mere opinions are insufficient, however, to satisfy an opposing party's burden." Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo.1987). "If no issue of material fact is found to exist, summary judgment is appropriate, even in a negligence case." Brown, 850 P.2d at 614.

DISCUSSION

1. The Accepted Work Doctrine

Several jurisdictions have adopted the accepted work doctrine, applying it in cases where a contractor has completed a project, the owner has accepted the contractor's work, and a third party has subsequently been injured by the condition of the work done. See e.g., Forbes v. Romo, 123 Ariz. 548, 601 P.2d 311, 314 (1979); Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 2 (1948); Lindauer v. LDB Drainlaying, 38 Colo.App. 266, 555 P.2d 197, 199 (1976); Easterday v. Masiello, 518 So.2d 260, 261 (Fla.1988); Pennington v. Cecil N. Brown Co., 187 Ga.App. 621, 371 S.E.2d 106, 107 (1988); Harrington v. LaBelle's of Colorado, 235 Mont. 80, 765 P.2d 732, 733 (1988); Singleton v. Charlebois Constr. Co., 690 S.W.2d 845, 849 (Mo.App.1985); McKinstry v. Cass County, 228 Neb. 733, 424 N.W.2d 322, 328-29 (1988). The rule relieves an independent contractor of liability for injuries to third parties after the contractor has completed his work, and the owner or employer has accepted the work, regardless of the contractor's negligence in completing the project. Pennington, 371 S.E.2d at 107; McKinstry, 424 N.W.2d at 328-29. Jurisdictions which have adopted the accepted work doctrine have reasoned that it would be unfair to continue to hold the contractor responsible for defects after the owner has accepted the improvement and undertaken its maintenance and repair. See Easterday, 518 So.2d at 261.

Varying exceptions to the doctrine's rule of nonliability have developed in the jurisdictions which have adopted the rule. These exceptions impose liability where the defect is latent, where the contractor had practiced fraud or deceit or had deliberately concealed the defects of his work, where the contractor has created a nuisance, or where the product of the contractor's work could be regarded as inherently or imminently dangerous. C.T. Drechsler, Annotation, Negligence of Building or Construction Contractor as Ground of Liability Upon His Part for Injury or Damage to Third Persons Occurring After Completion and Acceptance of the Work, 58 A.L.R.2d 865, 870 (1958).

Norton cites Reiman Constr. Co. v. Jerry Hiller Co., 709 P.2d 1271 (Wyo.1985) and Miller v. Rissler & McMurry Co., 794 P.2d 91 (Wyo.1990) to support his position that Wyoming has adopted the accepted work doctrine. However, neither Reiman nor Rissler established the accepted work doctrine in Wyoming. In both cases this court considered a contractor's duty with regard to project design, plans and specifications. In Rissler, we reiterated our conclusion from Reiman that

neither the usual practices of the construction industry, nor his contract, placed any design responsibilities on the contractor. However, we also noted that he did have a duty to exercise skill and care in his selection of materials and in the performance of his work. Accordingly, we held that a contractor could not be held liable for damages caused by defects in the plans and specifications for his job if he completed the job in a workmanlike manner and in substantial compliance with those plans and specifications.

Rissler, 794 P.2d at 94-95. In Reiman and Rissler, the contractors had completed their work, and the work had been accepted by the owner of the premises. We nonetheless outlined a contractor's duty to exercise skill and care in his selection of materials and in the performance of his work, and his duty to complete the job in a workmanlike manner, in substantial compliance with the owner's plans and specifications. Thus, our decisions in those cases imply a contractor's duty in its various aspects survives after his work has been completed and accepted. We are presented, then, with the question whether we should change that rule and replace it...