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SUNESON v. HOLLOWAY CONST. CO.5/27/1999
innocent person who paid for the negligent party's services . . . based on the legal fiction that by accepting a contractor's work, the owner of property fully appreciates the nature of any defect or dangerous condition and assumes responsibility for it.
Id. at 1262. The court concluded that in reality the opposite is usually true. Contractors, whether they be building contractors or architects, are hired for their expertise and knowledge. Id.
Some states have retained the accepted-work doctrine, but in doing so, they have added exceptions under which a contractor could remain liable after his work is accepted by the owner. See Easterday v. Masiello, 518 So.2d 260 (Fla. 1988) (contractors continue to be liable for latent defects); Bob v. Scruggs Co., 204 Ga. App. 375, 419 S.E.2d 100 (1992) (contractor not liable unless work constituted nuisance per se, was inherently or intrinsically dangerous, or was so negligently defective as to be imminently dangerous to others); Blake v. Calumet Constr. Co., 674 N.E.2d 167 (Ind. 1996) (contractor remains liable if the work presents imminent injury to third parties); Gast v. Shell Oil Co., 819 S.W.2d 367 (Mo. 1991) (en banc) (while court adheres to doctrine, contractor could still be liable for hidden defects); Dvorak v. Bunge Corp., 256 Neb. 341, 590 N.W.2d 682 (1999) (applying inherently dangerous and latent defect exceptions); Nelson v. L. & J. Press Corp., 223 N.W.2d 607 (Wis. 1974) (the accepted-work rule does not apply where the defect is not readily observable upon reasonable inspection); Nifong v. C.C. Magnum, Inc., 121 N.C. App. 767, 468 S.E.2d 463 (1996) (applying imminently dangerous exception); Mendez v. Paddock Pool Constr. Co., 172 Ariz. 258, 836 P.2d 968 (Ct. App. 1991) (doctrine applies only when the contractor has no discretion and merely follows the plans and specifications provided by its employer). In recognizing those states that have retained the doctrine conditioned upon specified exceptions, it is interesting at this point to note the Wyoming Supreme Court's view on the subject. In Lynch v. Norton Constr. Co., 861 P.2d 1095 (Wyo. 1993), the Wyoming court explained its refusal to adopt the doctrine by pointing out that the "rule of nonliability with its many exceptions is more cumbersome than traditional negligence analysis," as the exceptions to the rule nearly swallow up the rule. See also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts ยง 104A (5th ed. 1984) (noting that the exceptions tended to swallow the rule).
Arkansas adopted the accepted-work doctrine when this court first applied the doctrine in the 1910 case of Memphis Asphalt & Paving Co. v. Fleming, 96 Ark. 442 (1910). There the court stated the general rule that after the contractor has turned the work over to and it has been accepted by the proprietor, the contractor incurs no further liability to third parties by reason of the condition of the work, but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor. Id. at 443-44. In Memphis Asphalt, the contractor had constructed a sidewalk over a branch in an alley for the City of Little Rock. No guard rails or barriers were erected, and the plaintiff fell off the sidewalk into the branch. The plaintiff then sued and recovered damages in the trial court. On appeal, this court reversed and dismissed the action, holding that the contractor's liability ceased when the sidewalk improvement had been completed by the contractor, accepted by the engineer of the district, and opened to the public. Id. at 444; see also Southwestern Bell Tel. Co. v. Travelers Indem. Co., 252 Ark. 400, 479 S.W.2d 232 (1972) (recognizing doctrine).
This court h
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