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SUNESON v. HOLLOWAY CONST. CO.5/27/1999
v. Wright, 152 Eng. Rep. 402 (Ex. 1842), wherein a negligent contractor was shielded from liability for a third party's injuries because the contractor and third party were not in privity of contract. Suneson cites an early Connecticut case, Howard v. Redden, 93 Conn. 604, 107 A. 509 (1919), as typical of the early cases involving builders or contractors adhering to the Winterbottom rationale. In Howard, the court adopted a rule of proximate cause, holding that a contractor was not liable to a passerby injured when struck by a faulty cornice built by the contractor. The Howard court stated that the plaintiff's injury, which occurred after the contractor had completed the work, was due solely to the owner's failure to inspect and guard against the cornice's deterioration. The Connecticut court noted that although the contractor remained liable through privity after completion and acceptance of the work, the contractor's liability did not extend to third persons. The Howard court
recognized the following three reasons supporting the accepted-work doctrine:
(1) The Winterbottom decision and its application of the doctrine of privity to cases in negligence;
(2) The owner alone was in control of the entity when the injury occurred; and
(3) The presumption that the owner had carefully inspected the work and knew of its defect before accepting. See also Minton v. Krish, 34 Conn. App. 361, 642 A.2d 18 (1994).
In 1977, the Connecticut Supreme Court in Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977), reversed its earlier Howard decision and concluded that a contractor could be liable to an injured third party even though the contractor's negligent work had been completed and the owner had accepted it. In doing so, the Connecticut court recognized the revolution in the law of negligence sparked by MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), and the fact that the MacPherson decision marked the demise of the privity-of-contract requirement in products cases and established the rule that a seller of a product is liable for negligence that may foreseeably injure another. Coburn, 378 A.2d at 602. The Coburn court further implicitly rejected the control theory and the theory of knowledge and acceptance the Howard court had previously used when applying the accepted-work rule. See also Minton, 642 A.2d at 21.
The Minton court, in explaining Connecticut's decisions departing from the accepted-work doctrine, stated as follows:
In rejecting the "completed and accepted" rule, our courts join the majority of jurisdictions. W. Prosser & W. Keeton, supra, § 104A; annot., 58 A.L.R.2d 891 (1958) (listing jurisdictions that have rejected the rule). We conclude that the "completed and accepted" rule has been repudiated in Connecticut and replaced with the rule of foreseeability as expressed in 2 Restatement (Second), Torts (1965) § 385: "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."
Minton, 642 A.2d at 21.
Suneson cites cases from other jurisdictions that have repudiated the accepted-work doctrine. See Saylor v. Hall, 497 S.W.2d 218 (Ky. 1973); McDonough v. Whalen, 313 N.E.2d 435 (Mass. 1974); Krisovich v. Booth, 181 Pa. Super. 5, 121 A.2d 890 (1956); Johnson v. Oman Const. Co.,
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