Attorney for Appellants Attorney for Appellee
Lane C. Siesky Daniel L. Siewers
Barber & Shoulders Hart Bell Cummings Ewing & Stuckey
Evansville, Indiana Vincennes, Indiana
Appeal from the Knox Superior Court II, No. 42D02-0005-CT-117
The Honorable Jim R. Osborne, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 42A01-0109-CV-350
March 11, 2004
Donald Forster owned several rental properties and was the landlord of the Hamms
daughter. He also engaged in construction work as an independent contractor.
By agreement with the Hamms, Forster transported the ramp from its original location
to the Hamm residence where he and a few of his employees attached
it to the front of the house with a couple of screws.
Appellants App. at 35. Forster was aware the ramp did not meet
building code requirements for a wheelchair ramp, but he was unaware of code
requirements for other types of ramps. After installation, the Hamms daughter attached
carpeting to the ramp.
On March 15, 1999, Wayne Peters delivered a meal to the Hamm residence. Using the ramp to enter the house Peters apparently encountered no difficulty. Upon leaving however, Peters slipped and fell sustaining serious injury. Thereafter, he filed a complaint for damages against the Hamms for negligence in maintaining the ramp. Peters wife joined in the complaint on a loss of consortium claim. The complaint was later amended to include Forster as a party defendant. See footnote Thereafter Forster moved for summary judgment which the trial court granted on grounds that as a matter of law Forster owed no duty to Peters because the Hamms accepted and paid for the work Forster performed. Appellants App. at 1. On review, the Court of Appeals reversed relying on an exception to the general rule of nonliability where an owner accepts a contractors work. Peters v. Forster, 770 N.E.2d 414, 419 (Ind. Ct. App. 2002). We grant transfer and abandon the rule.
Generally, Indiana has followed the rule that contractors do not owe a duty
of care to third parties after the owner has accepted the work.
Blake v. Calumet Constr. Corp., 674 N.E.2d 167, 170 (Ind. 1996); Citizens Gas
& Coke Util. v. Am. Econ. Ins. Co., 486 N.E.2d 998, 1000 (Ind.
1985). This rule, commonly referred to as the acceptance rule or the
completed and accepted rule, has its origins in English common law under which
architects and builders were immune from civil liability to third persons who were
injured as a result of their negligence in design or construction. George
Anthony Smith, Recent Statutory Developments Concerning the Limitations of Actions Against Architects, Engineers,
and Builders, 60 Ky. L.J. 462, 463 (1972). Immunity was based on
privity of contract. Without this relationship one could not sue. Id.
The authority most often cited for injecting a privity requirement into what
was otherwise a negligence claim is Winterbottom v. Wright, 152 Eng. Rep. 402
(Ex. 1842). In that case, a party entered into a contract with
the Postmaster General to keep the mail coach in good repair. A
mail coach driver was injured when the coach collapsed and he sought damages
from the party charged with maintaining the vehicle. Denying relief and articulating
the sentiment of the members of the Court of Exchequer, Lord Abinger declared
in pertinent part:
There is no privity of contract between these parties; and if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue . . . .
Id. at 405. Early American common law mirrored the English common law rule requiring privity of contract. Accordingly, although a contractor was held liable for injury that resulted from his negligence before his work was completed, his responsibility was terminated, and he was not liable to any third person once the structure was completed and accepted by the owner. W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 104A, at 722 (5th ed. 1984).
The acceptance rule first appeared on Indianas legal landscape with this Courts opinion in Daugherty v. Herzog, 145 Ind. 255, 44 N.E. 457 (1896). In that case the appellants daughter was fatally injured when the wall of a building collapsed, striking her. Seeking recovery for the loss of his daughters services, the father filed an action in negligence against the contractor who had reconstructed the building. Affirming the trial courts grant of a demurrer, this Court determined that the father had no cause of action against the contractor. The Court reasoned that the contractor was liable only to the party to whom he owed a duty. In that case it was the person with whom he was in privity, namely the owner with whom the contractor had contracted. This Court also noted that [t]he repairs had been completed and accepted long before appellants daughter was injured. Id. at 457. Continuing, the Court gave the following examples and explanation for its ruling:
There must be causal connection between the negligence and the hurt; and such causal connection is interrupted by the interposition, between the negligence and the hurt of any independent human agency. . . . Thus, a contractor is employed by a city to build a bridge in a workmanlike manner; and after he has finished his work, and it has been accepted by the city, a traveler is hurt when passing over it by a defect caused by the contractors negligence. Now the contractor may be liable to the city for his negligence, but he is not liable in an action on the case for damages. The reason sometimes given to sustain such conclusion is, that otherwise there would be no end to suits. But a better ground is that there is, no causal connection, as we have seen, between the travelers hurt and the contractors negligence . . . [B]etween the contractor and the traveler intervened the city, an independent responsible agent, breaking the causal connection.
Id. at 45758 (quotations omitted). Relying on Daugherty and its progeny, our courts have articulated two primary reasons supporting the acceptance rule: (1) the application of the doctrine of privity to cases involving negligence; See footnote and (2) the owners control of the entity when the injury o ccurred. See footnote
The privity of contract requirement in the law of negligence has largely eroded.
In a watershed decision Judge Cardozo, speaking for a majority on the
New York court of last resort, ruled that a manufacturer of automobiles could
be held liable in negligence to the ultimate purchaser of the vehicle, not
just the immediate purchaserthe retail dealer.
MacPherson v. Buick Motor Co., 111
N.E. 1050, 1053 (N.Y. 1916). In essence, at least in the area
of manufacturers liability, MacPherson stripped the privity requirement of Winterbottom from its lofty
position. Our courts have done likewise. See, e.g., Perdue Farms, Inc.
v. Pryor, 683 N.E.2d 239, 241 (Ind. 1997) (Privity of contract is no
longer required if a personal injury action for a defective product sounds in
tort.); Coca Cola Bottling Works of Evansville v. Williams, 111 Ind. App. 502,
37 N.E.2d 702, 706 (1941) (citing MacPherson with approval and declaring that the
rule now in the best reasoned cases is that the manufacturer of foods
or bottled goods sold for human consumption may be held liable to the
ultimate consumer for injuries caused by foreign deleterious substances in such goods regardless
of whether or not there was privity of contract between them). Still,
the privity of contract requirement in the area of contractors and builders has
lingered in Indiana and apparently in several other jurisdictions as well.
See footnote However
even for contactors and builders, privity as an absolute defense is subject to
numerous exceptions. For example, even absent privity of contract, a contractor remains
liable where (i) the contractor turns over work in a condition that was
dangerously defective, inherently dangerous or imminently dangerous such that it created a risk
of imminent personal injury,
Citizens Gas, 486 N.E.2d at 1000, or where (ii)
the thing sold or constructed be not imminently dangerous to human life, but
may become such by reason of some concealed defect [and the] vendor or
constructor . . . knew of the defect and fraudulently concealed it.
Holland Furnace Co. v. Nauracaj, 105 Ind. App. 574, 14 N.E.2d 339, 342
The declining role of privity in the area of manufacturers liability, along with
the growing list of exceptions to the privity requirement, has contributed to the
increasing number of jurisdictions that have abandoned the acceptance rule.
Strakos v. Gehring, 360 S.W.2d 787, 791 (Tex. 1962) (characterizing the rule as
an oft-repudiated and emasculated doctrine that has become enveloped by complex exceptions to
cover such situations as nuisance, hidden danger, and inherently dangerous conditions); Lynch v.
Norton Constr., Inc., 861 P.2d 1095, 1099 (Wyo. 1993) (observing the rule of
nonliability with its many exceptions is more cumbersome than traditional negligence analysis, while
leading us to the same conclusion in most cases). In addition, the
control rationale in support of the acceptance rule has also waned in importance
as an exculpatory factor. As one court explained:
[The acceptance rule] has the undesirable effect of shifting responsibility for negligent acts or omissions from the negligent party to an innocent person who paid for the negligent partys services. Furthermore, the shifting of responsibility is based on the legal fiction that by accepting a contractors work, the owner of the property fully appreciates the nature of any defect or dangerous condition and assumes responsibility for it. In reality, the opposite is usually true. Contractors, whether they be building contractors, or architects, are hired for their expertise and knowledge. The reason they are paid for their services is that the average property owner does not have sufficient knowledge or expertise to design or construct real property improvements safely and soundly. . . . How then can we logically conclude that simply because the professional has completed his or her services and the contractee has paid for those services, liability for the contractors negligence should shift to the innocent and uninformed contractee? We cannot.
Pierce v. ALSC Architects, P.S., 890 P.2d 1254, 1262 (Mont. 1995). Consistent with this reasoning a number of jurisdictions have abandoned the acceptance rule in favor of what has been described as the so-called modern rule or foreseeability doctrine. See footnote
As Professor Prosser o bserves:
It is now the almost universal rule that the contractor is liable to all those who may foreseeably be injured by the structure, not only when he fails to disclose dangerous conditions known to him, but also when the work is negligently done. This applies not only to contractors doing original work, but also to those who make repairs, or install parts, as well as supervising architects and engineers. There may be liability for negligent design, as well as for negligent construction.
Keeton et al., supra, § 104A, at 723. This trend also is reflected in the Restatement (Second) of Torts:
One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.
Restatement (Second) of Torts § 385 (1965).
In essence instead of applying the non-liability rule, a number of courts have
embraced the rule that a contractor is liable for injuries or death of
third persons after acceptance by the owner where the work is reasonably certain
to endanger third parties if negligently completed. See id. This view
adopts the rationale that there are insufficient grounds to differentiate between liability of
a manufacturer of goods and that of a building contractor. See id.
We think this is the better view and today we endorse it
as well. A rule that provides that a builder or contractor is
liable for injury or damage to a third person as a result of
the condition of the work, even after completion of the work and acceptance
by the owner, where it was reasonably foreseeable that a third party would
be injured by such work due to the contractors negligence, is consistent with
traditional principles of negligence upon which Indianas scheme of negligence law is based.
We hasten to add that a contractors liability under this reasoning is not
absolute, but predicated upon negligence, that is, duty, breach of duty, and injury
proximately caused by the breach. Thus for example, there is no breach
of duty and consequently no negligence where a contractor merely follows the plans
or specifications given him by the owner so long as they are not
so obviously dangerous or defective that no reasonable contractor would follow them.
Keeton et al., supra, § 104A, at 723-24; see also Ross v. State,
704 N.E.2d 141, 145 (Ind. Ct. App. 1998) (noting that where a contractor
is not following his or her own plans, but those provided by the
owner, liability is imposed only where the plans are so obviously defective that
no reasonable contractor would follow them).
In this case Peters alleged among other things that Forster installed the ramp
in violation of applicable building codes. The trial court granted summary judgment
in favor of Forster on grounds that he owed Peters no duty as
a matter of law based on the acceptance rule. Because we have
abandoned the rule, Forsters liability must be evaluated under traditional principles of negligence.
In general a contractor has a duty to use reasonable care both in
his or her work and in the course of performance of the work.
See Computer Co., 623 N.E.2d at 1076. However, [t]he duty of
reasonable care is not, of course, owed to the world at large, but
rather to those who might reasonably be foreseen as being subject to injury
by the breach of the duty. Thiele v. Faygo Beverage, Inc., 489
N.E.2d 562, 574 n.4 (Ind. Ct. App. 1986). Thus, Forster contends that
even if the acceptance rule is abandoned, the judgment of the trial court
nonetheless should be affirmed. Forster points out that even under the so-called
modern rule a contractor is still not liable unless it is reasonably foreseeable
that a third person would be injured by the contractors action. According
to Forster the chain of causation in this case was broken between his
action and Peters injury thus rendering the injury unforeseeable. In support Forster
asserts: (i) the Hamms controlled the ramp at the time Peters fell; (ii)
the Hamms daughter altered the ramp by installing carpet on it; and (iii)
there was no evidence presented that the ramp was likely to cause injury.
We view Forsters claim as an argument that his alleged conduct was not
the proximate cause of Peters injury. Although a rigorous definition is elusive,
proximate cause has been defined as that cause which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the result complained of and
without which the result would not have occurred. Orville Milk Co. v.
Beller, 486 N.E.2d 555, 559 (Ind. Ct. App. 1985). The foreseeability of
an intervening cause and, thus, whether the defendants conduct is the proximate cause
of the plaintiffs injuries, is generally a question of fact for the jury
to decide. Natl R.R. Passenger Corp. v. Everton by Everton, 655 N.E.2d
360, 366-67 (Ind. Ct. App. 1995), trans. denied; see also Conder v. Hull
Lift Truck, Inc., 435 N.E.2d 10, 15 (Ind. 1982) ([T]he question concerning foreseeability
of intervening third party misconduct is most often held to be a question
of fact for the jurys determination.). Only in plain and indisputable cases,
where only a single inference or conclusion can be drawn, are the questions
of proximate cause and intervening cause matters of law to be determined by
the court. Crull v. Platt, 471 N.E.2d 1211, 1215 (Ind. Ct. App.
1984). The facts of this case do not lead us to the
conclusion that the foreseeability of the intervening causes Forster articulates is a question
for the court to decide. Rather, this is a question for the
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.