McFadden v. Ten-T Corp., TEN-T

• Decision Date: 27 May 1988
• Docket Number: TEN-T
• Citation: 529 So.2d 192
• Parties: Mary Evelyn McFADDEN v.CORPORATION. 86-738.
• Court: Alabama Supreme Court

Page 192

529 So.2d 192

Mary Evelyn McFADDEN v. TEN-T CORPORATION.

86-738.

Supreme Court of Alabama.

May 27, 1988.

Andrew T. Citrin and Steven A. Martino of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellant.

Douglas L. Brown and William H. Philpot, Jr., Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.

BEATTY, Justice.

The plaintiff, Mary Evelyn McFadden, appeals from a summary judgment granted in favor of the defendant, Ten-T Corporation, in her action to recover damages. We reverse and remand.

The Alabama State Highway Department awarded a contract to Ten-T Corporation as a general contractor to resurface and widen a portion of a state highway in Escambia County. The Highway Department furnished the plans and specifications for the project, which, by contract, Ten-T Corporation was required to follow in the construction. Specifications for the drainage of the highway were specifically included in the plans. The Highway Department provided an on-site representative to inspect every phase of construction.

Following completion of the construction in December 1983, and the recommendation of the supervising engineer, the Highway Department accepted the work on December 28, 1983, and assumed responsibility for the maintenance of the highway. On July 18, 1984, approximately seven and one-half months after completion of the construction, Mrs. McFadden had an automobile accident on this portion of the highway. She was on her way to work during a heavy rain. As Mrs. McFadden entered a curve, she hit a body of water in the middle of her lane, lost control of the car, collided with a tree, and suffered injuries, resulting in medical expenses in excess of $17,000.

Mrs. McFadden and her husband filed suit against Ten-T Corporation based on her injuries and his loss of consortium arising out of Ten-T Corporation's alleged negligence in the widening and resurfacing of the highway, which they claim created the hazardous condition that proximately caused Mrs. McFadden's accident.

The trial court granted Ten-T Corporation's motion for summary judgment, holding that, as a matter of law, the plaintiff was not entitled to recover against the defendant, based on the application of a decision of the Fifth Circuit Court of Appeals, E.I. duPont de Nemours & Co. v. Kissinger, 259 F.2d 411 (5th Cir.1958). In that case, the Fifth Circuit Court of Appeals construed Alabama law to be that, if the owner has accepted an independent contractor's work, that contractor could not be held liable in negligence to an injured third party. Mrs. McFadden appeals from the summary judgment granted in favor of Ten-T Corporation. Her husband did not join in this appeal.

This case presents squarely the question of whether this Court should accept the 30-year-old rule of the Fifth Circuit Court of Appeals in E.I. duPont de Nemours & Co., supra, that a contractor is insulated from liability to third persons simply by virtue of the fact that the owner has accepted the contractor's completed construction prior to the plaintiff's accident. Or, in these circumstances, should liability extend to contractors where third persons are injured as a result of the contractor's negligent construction or repair?

A review of Alabama cases decided since E.I. duPont de Nemours & Co. reveals that, while some cases have been decided on the assumption that injured third parties have a cause of action against contractors for negligence, the issue of whether a contractor is immune from liability merely because the owner has accepted the contractor's work has never been directly presented to this Court. The plaintiff urges this Court not to adopt the rationale set forth in E.I. duPont de Nemours & Co., but to apply the "imminently dangerous" exception to the general rule of nonliability. In the alternative, plaintiff urges this Court to expressly adopt the contemporary rule extending liability to contractors following acceptance of their work by the owner if the contractors' work was negligently done and it was foreseeable that third persons would be injured by that work.

The imminently dangerous exception to manufacturer's nonliability, which eliminated the requirement of privity for plaintiffs to recover, was first enunciated in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, 1053 (1916):

"If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow."

It is the exception to the general rule of nonliability with which the Fifth Circuit was concerned in E.I. duPont de Nemours & Co. In that case, the plaintiff's injury allegedly resulted from the use of a 3/4 inch screw to attach a handle to a 250-pound warehouse door. The plaintiff was injured when he attempted to open the door and the handle fell off, causing him to suddenly fall backward with significant force. The warehouse in which the door was located had been constructed 13 years prior to the accident and was built by E.I. duPont de Nemours & Company for the federal government, purportedly as a temporary structure, or five-year plant, during World War II. At the time of the plaintiff's injuries, the warehouse was a part of a group of buildings being rehabilitated by the federal government. Those hired to do that rehabilitative work had been cautioned extensively concerning the possible dangers existing due to the age and deterioration of the project.

The plaintiff filed a negligence action against E.I. duPont de Nemours & Company, and, following a trial, the jury returned a verdict in favor of the plaintiff. E.I. duPont de Nemours & Company appealed the trial court's denial of its directed verdict. On appeal, the injured plaintiff urged the Fifth Circuit Court of Appeals to apply the imminently dangerous exception to the general rule of nonliability for contractors just as it had been applied in the case of manufactured goods. The Court of Appeals examined three Alabama cases involving negligent manufacturing and, under the facts of that case, concluded that the Alabama "rule thus developed respecting manufacturers of dangerous mechanisms should not be extended to building contractors." Additionally, the Court of Appeals held that the trial court erred in not directing a verdict for E.I. duPont de Nemours & Company, because the evidence of negligence was insufficient to go to the jury.

Essentially two forms of the rule of contractor liability exist today. Some jurisdictions have adopted the general rule that a contractor has no liability to third persons following acceptance of the work by the owner unless one of the exceptions, such as the imminently dangerous exception, applies. See Reynolds v. Manley, 223 Ark. 314, 265 S.W.2d 714 (1954); Whiten v. Orr Construction Co., 109 Ga.App. 267, 136 S.E.2d 136 (1964). Other jurisdictions apply the rule that a contractor is liable to third persons following acceptance of the work by the owner if the structure was negligently built and it was reasonably foreseeable that these third persons would be injured. See Johnson v. Equipment Specialists, Inc., 58 Ill.App.3d 133, 15 Ill.Dec. 491, 373 N.E.2d 837 (1978), and cases cited therein.

The development of the contemporary rule extending liability to contractors following acceptance of the work by the owner has paralleled the development of products liability law as explained by Justice Maddox in his dissent in Bagby Elevator & Electric Co. v. McBride, 292 Ala. 191, 202, 291 So.2d 306, 316 (1974), set out in pertinent part below:

"Historically, most courts, in passing upon the question of a building or contractor's negligence resulting in injury or damage to third persons after the completion of the work and acceptance thereof by the owner, start with the assumption of what has been considered to be the general rule, namely, that the contractor is not liable for such injuries to third persons, on the theory that no privity of contract exists between the contractor and such third persons, and that no duty is owed by the contractor in performing the contract other than to the contractee. There was no liability at common law. However, as in the case of manufacturers and sellers of chattels, a long list of exceptions to the general rule grew up in an attempt to lessen the harshness of the original nonliability rule. During the last decade or two, numerous courts have repudiated the rule and have brought an end to the differentiation between manufacturers of goods and building or construction contractors. See Annotation: Contractor-Liability to Third Person, 58...