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SUNESON v. HOLLOWAY CONST. CO.5/27/1999
as on other occasions recognized the accepted-work doctrine, but in those instances, our court, like the jurisdictions retaining it as set out above, adopted certain exceptions in an attempt to soften the harsh effects of the doctrine. For example, in Canal Construction Co. v. Clem, 163 Ark. 416 (1924), the court stated the general rule that where the contractor turns work over to the owner that is a nuisance per se, imminently dangerous, or contains hidden or concealed defects, the contractor may be found liable to a third party injured as a result of the work even after the owner accepted it. In Reynolds v. Manley, 223 Ark. 314, 265 S.W.2d 714 (1954), the court explicitly acknowledged and considered two exceptions to the doctrine by stating the following:
The courts and authorities in general recognize at least two exceptions to the general rule upon which appellees here rely, namely: (a) Where a defect in construction caused by the negligence of the contractor is so concealed that it could not reasonably be detected on inspection by the proprietor, and; (b) Where
the job is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons.
Id. at 320; see also Milam v. Midland Corp., 282 Ark. 15, 665 S.W.2d 284 (1984) (court found construction was not imminently dangerous); Chesser v. King, 244 Ark. 1211, 428 S.W.2d 633 (1968) (court applied doctrine, holding no contractor liability because no nuisance per se, imminent danger, or latent defect was shown).
In Reynolds, the plaintiff had been forced to pull his car off the highway and onto a concrete extension slab. At the end of the extension slab, the right wheel of plaintiff's car had gone into a hole or rut, causing him to lose control and to swerve into the path of an oncoming car. As a result of the collision, plaintiff's wife died and the plaintiff and his children were injured. On review, this court determined that neither the imminent danger nor latent defect exception had been proven and, therefore, under the general rule of the accepted-work doctrine, the contractor could not be held liable. In support of its adherence to the general rule of no liability under the doctrine, the Reynolds court reasoned that holding the contractor liable under such a situation would cause contractors to be subjected to potential liabilities so great as to deter them from undertaking such work, or would force them to demand such exorbitant prices as to make further road construction impossible, and render it questionable as to the point in time such liability would cease. Id. at 323.
In the case of Sproles v. Associated Brigham Contractors, Inc., 319 Ark. 94, 889 S.W.2d 740 (1994), we acknowledged the forceful authority in support of abandoning the accepted-work doctrine. Sproles, 319 Ark. at 98 (citing RESTATEMENT (SECOND) OF TORTS § 385 (1965); W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 104A (5th ed. 1984); McDonough v. Whalen, 365 Mass. 506, 313 N.E.2d 435 (1974); Johnson v. Oman Const. Co., 519 S.W.2d 782 (Tenn. 1975); Kristek v. Catron, 7 Kan. App. 2d 495, 644 P.2d 480 (1982); Nichols v. Corntassel, 852 P.2d 583 (Mont. 1993)). We also announced a willingness to
reexamine the doctrine, although the court added that no inference should be drawn from such an invitation.
As previously mentioned, the accepted-work doctrine is based on a privity-of-contract theory, which is a concept that has become virtually extinct in American jurisprudence, at least to the extent privity had been recognized earlier in the product-liability context. Citing the Winterbottom and MacPherson cases, our court in Chapman Chemical Co. v. Taylor, 2
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