Thompson v. Coats

• Decision Date: 25 March 1976
• Citation: 274 Or. 477,547 P.2d 92
• Parties: Earl THOMPSON, Personal Representative of the Estate of Kathleen B. Thompson, Deceased, Appellant, v. Robert L. COATS, Respondent.
• Court: Oregon Supreme Court

Page 92

547 P.2d 92

274 Or. 477

Earl THOMPSON, Personal Representative of the Estate of Kathleen B. Thompson, Deceased, Appellant, v. Robert L. COATS, Respondent.

Supreme Court of Oregon.

Argued and Submitted at Pendleton Oct. 28, 1975.

Decided March 25, 1976.

Stanley E. Clark, of Clark & MacMurray, Redmond, argued the cause and filed briefs for appellant.

James C. VanVoorhees, Prineville, argued the cause for respondent. James F. Bodie, Bodie, Minturn, VanVoorhees & Larson, Prineville, were on the brief.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, TONGUE, HOWELL and BRYSON, JJ.

McALLISTER, Justice.

This action for wrongful death was brought against Robert L. Coats, a highway contractor, by Earl Thompson as the personal representative of the estate of his daughter, Kathleen B. Thompson. At the close of plaintiff's case defendant's motion for an involuntary nonsuit was allowed. Plaintiff has appealed. We reverse.

Kathleen B. Thompson died as the result of injuries sustained in an automobile accident on July 26, 1971. The accident occurred on an 11.8 mile stretch of highway in Wasco County which the defendant had just repaved under a contract with the State Highway Commission. The repaving had raised the level of the highway and had left an abrupt drop-off of from five to eight inches on each side of the pavement. Defendant's contract did not include any work on the shoulders of the highway, which were to be built up by the Highway Commission after defendant's paving contract had been completed.

Kathleen was driving her car in a northwesterly direction on the new pavement at a point about a mile or so from the south end of the paving project. It was in the evening and Kathleen was driving toward the setting sun. There was evidence from which the jury could have found that one or both of the right wheels of the decedent's car dropped off the right or east edge of the highway and that the car had then skidded sideways diagonally across the pavement, dropped off the west edge of the pavement, and then rolled over several times and came to rest 171 feet from the west edge of the pavement.

At the time of the accident there was no center line, nor any fog lines painted on the pavement, but there were small florescent squares indicating where the center line would be painted.

The contract between Coats and Highway Commission consisted of a Contract and Bond for Highway Construction and a book of Standard Specifications for Highway Construction, both of which contain provisions pertinent to this case. We quote a provision from the Standard Specifications:

'107.18 Public Safety and Convenience--The contractor shall be responsible for all damages to property, injury to persons, and loss, expense, inconvenience, and delay that may be caused by or that may result from any act, omission, or neglect of the contractor, his subcontractors, or the employees of either in the performance of the work to be done under the contract.

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'Where abrupt dropoffs occur or other hazards are created, the contractor shall provide warning devices visible by day and by night delineating the hazard and warning traffic of its existence.'

The Contract contained the following provisions:

'107.27 Temporary Protective and Directional Measures for Traffic--Temporary protection and directional measures for traffic shall be provided in conformance with subsection 107.27 of the Standard Specifications supplemented and/or modified as follows:

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'e. Reflectorized guide posts shall be installed on approximate 50-foot centers at all locations where there is a hazardous vertical drop-off at the edge of the travel way and/or where construction work affects a ready definition of the edges of the usable travel way. Reflectors shall meet the requirements set forth in subsection 711.03 of the Standard Specifications.'

There was ample testimony that the reflectorized guideposts were not in place from the south end of the project to the scene of the accident. In fact, the case seems to have been tried on the tacit understanding that the reflectorized guideposts had never been installed, at least on the south portion of the project where this accident occurred. Pictures taken of the scene of the accident the day after it occurred showed clearly that there were no reflectorized guideposts along either side of the pavement and there was testimony that these pictures were an accurate portrayal of the scene of the accident at the time it occurred.

Defendant's liability, if any, arises from a common law duty to protect the public from any dangerous condition which he may have created in the performance of his contract. Archer v. Rogers Construction, Inc., 252 Or. 165, 171, 447 P.2d 380 (1968). In Larson v. Heintz Const. Co. et al, 219 Or. 25, 53, 345 P.2d 835 (1959), we held that a highway construction contract, as here, is admissible in evidence as a circumstance to be considered in determining whether reasonable care was exercised. ¹ See, also, Waterway Terminals v. P. S. Lord, 242 Or. 1, 50--51, 406 P.2d 556, 13 A.L.R.3d 1 (1965); Collins v. Lantz, Vickery, 244 Or. 62, 67, 415 P.2d 763 (1966). In this case we hold that the contract provisions requiring the installation of reflectorized guideposts along each edge of the pavement were sufficient, together with the over evidence, to make a case for the jury.

Defendant's motion for an involuntary nonsuit was based on five grounds, but the trial court allowed the nonsuit only on the ground that the defendant had, for practical purposes, completed his contract and that control of the project had passed to the Highway Commission.

The pertinent provisions of the contract regarding completion of the contract and acceptance of the work by the Highway Commission are as follows:

'105.01 Authority of the Engineer--* * *

'Approval by the engineer signifies favorable opinion and qualified consent; it does not carry with it certification, nor assurance of completeness nor assurance of quality nor assurance of accuracy concerning details, dimensions and quantities. Such approval will not relieve the contractor from responsibility for errors, for improper fabrication, for nonconformance to requirements, or for deficiencies within his control.'

'105.18 Semifinal and Final Inspection--Upon due notice in writing from the contractor of presumptive completion of the entire project, the engineer will make a semifinal inspection within ten days of receiving said notice. If at such semifinal inspection, all construction provided for and ordered under the contract is found completed and satisfactory to the engineer, such inspection shall constitute the final inspection.

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'105.19 Final Acceptance--Final acceptance of the work under the contract is to be by resolution by the Highway Commission and will be subsequent to and contingent upon the final inspection of the work.

'The contractor will be notified in writing, concerning final acceptance of the work, within ten days after Commission action or as soon thereafter as is practicable.'

The defendant's primary contention is that 'the contractor had been relieved of liability at the time of the accident by the practical acceptance of the pavement work by the State of Oregon through its Resident Engineer Clark.' ²

We disagree with defendant's contention for two reasons. In the first place, it is clear from the evidence that two conditions precedent for acceptance of the work had not occurred. In addition to the preliminary inspection by the resident engineer, it was necessary for the work to be inspected by the regional engineer. This inspection was not completed until July 29, 1971. In addition, the work was not finally accepted by resolution of the Highway Commission until about September 1, 1971.

In allowing the nonsuit the trial court relied on the doctrine of practical completion as stated in the Annotation, Contractor--Liability to Third Person, 13 A.L.R.2d 191, 211, from which we quote:

'The operation of the general rule that the contractor is not liable to a third person receiving injury or damage as a result of the negligent construction of the work, after the completion and acceptance thereof by the contractee or owner, does not require a formal acceptance of the contractor's work, and the liability of the contractor will cease with a practical acceptance after completion.'

We question whether the preliminary inspection by the resident engineer can amount to practical acceptance when the resident engineer testified that his preliminary inspection was subject to approval by an inspection made by his superior, the regional engineer. The final inspection was not made until July 29, 1971, or three days after the accident.

In any event, the doctrine of practical acceptance is out of harmony with our cases which have imposed liability on a contractor for damage to third persons caused by the contractor's negligence in the performance of his contract, but occurring after the work had been completed by the contractor and accepted by the owner.

In Strandholm v. General Const. Co., 235 Or. 145, 155, 382 P.2d 843 (1963), we said:

'It is now the generally accepted view that the liability of a contractor is the same as that specifically imposed upon a manufacturer by MacPherson v. Buick Motor Co., supra, 217 N.Y. 382, 111 N.E. 1050, LRA 1916F, 696. Study of the MacPherson opinion causes wonder that there could have been so much question as to the application of the doctrine announced by the MacPherson case to persons who were not manufacturers in the strict sense of the word. * * *'

We further said, at page 157, 382 P.2d at page 849:

'In any event a person standing in the position of defendant in the instant case (a construction company which had installed a mast, boom and rigging for an injured longshoreman's employer) is now generally held to a liability for injury caused to third persons by his failure to safely build or...