Russell v. Arthur Whitcomb, Inc.

• Decision Date: 19 April 1956
• Citation: 100 N.H. 171,121 A.2d 781
• Parties: Gerard F. RUSSELL et al. v. ARTHUR WHITCOMB, Inc.
• Court: New Hampshire Supreme Court

Page 781

121 A.2d 781

100 N.H. 171

Gerard F. RUSSELL et al. v. ARTHUR WHITCOMB, Inc.

Supreme Court of New Hampshire.

Argued March 6, 1956.

Decided March 29, 1956.

Rehearing Denied April 19, 1956.

Howard B. Lane, Keene, for plaintiffs.

Bell & Bell, Keene, Ernest L. Bell, III, Keene, for defendant.

KENISON, Chief Justice.

Subject to certain exceptions, it is the general rule supported by a majority of jurisdictions that an independent building or construction contractor is not liable for negligent injury to third persons occurring after the work has been completed and accepted by the owner or employer. Smith v. Claude Neon Lights, Inc., 110 N.J.L. 326, 164 A. 423; Sherman & Redfield, Negligence (Rev. ed.) § 267; Annotation 13 A.L.R.2d 191. While various reasons have been advanced to explain the general rule the most common one is that control has passed from the independent contractor to the owner upon acceptance of the project. Cunningham v. T. A. Gillespie Co., 241 Mass. 280, 135 N.E. 105. However the rule and the reasons advanced in its behalf have not been entirely satisfactory as indicated by the fact that various flexible exceptions have been developed. One exception under which the independent contractor is liable is where projects which are inherently or imminently dangerous are involved. Berg v. Otis Elevator Co., 64 Utah 518, 231 P. 832; Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517. See Restatement, Torts, § 385, comment b. In this case the depression in the highway cannot be classed as inherently or imminently dangerous.

Counsel are in agreement that there is no case in this state which definitely determines the responsibility of an independent construction contractor after the acceptance of the project the employer. The Trial Court followed the general rule and instructed the jury accordingly. Since the non-liability rule carries with it no exception which would apply to the facts of this case, the plaintiffs were not permitted to recover any damages occurring after the work was completed. Engler v. Aldridge, 147 Kan. 43, 75 P.2d 290; Memphis Asphalt & Paving Co. v. Fleming, 96 Ark. 442, 132 S.W. 222; Donaldson v. Jones, 188 Wash. 46, 61 P.2d 1007. The fact that the city retained a nominal sum for future payment unrelated to the excavation itself did not affect the acceptance of the project by the city. All that is required under the nonliability rule is that there shall be a practical acceptance and completion and that occurred in this case. Rengstorf v. Winston Bros. Co., 167 Minn. 290, 208 N.W. 995.

Some jurisdictions have not been content to accept the general rule and its exceptions as indicated by Prosser, Torts, (2d ed. 1955) § 85, p. 519: 'Several recent decisions have placed building contractors on the same footing as sellers of goods, and have held them to the general standard of reasonable care for the protection of anyone who may foreseeably be endangered by their negligence, even after acceptance of the work. One important limitation recognized in several cases is that the contractor is not liable if he has merely carried out the plans,...