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SUNESON v. HOLLOWAY CONST. CO.5/27/1999
15 Ark. 630, 222 S.W.2d 820 (1949), adopted the doctrine of manufacturers's liability based upon foreseeability rather than privity of contract. See also Ark. Code Ann. § 4-86-101 (Repl. 1996) (General Assembly statutorily provided that the lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence).
During oral argument, appellees urged that the foreseeability and negligence rules applicable in a products liability case should not be controlling in an owner-contractor situation. They assert that, in a products case, a manufacturer has the ability to recall the defective products, but in the owner-contractor situation, once an owner takes control of the work or improvement, the contractor, unless he has the owner's permission, cannot correct a defect or negligent work condition. The treatise, The Law of Torts, discusses similar distinctions in these two situations and addresses them in the following way:
The manufacturer makes standard goods and develops standard processes. Defects are harder to find in the contractor's special jobs. Again, the owner usually gives more thorough inspection to a building or structure than a vendee gives to a chattel. And a longer time may elapse between construction and injury in the contractor's case with the consequently greater opportunity for intervening factors to play a part. These considerations, however, go to the question of negligence and should be treated simply as problems of proof in individual cases. They should not be erected into a rule of thumb. And the modern tendency has been to measure the scope of duty here by the same broad principles
of negligence as are generally applied in the field of accidental injuries.
5 HARPER, JAMES & GRAY, THE LAW OF TORTS § 18.5 (2d ed. 1986) (footnotes omitted). Appellees in the instant case tend to rely heavily on the possibility that an owner, such as the AHTD, could exercise control over the improvement to exclude a contractor from correcting a negligent condition that the contractor belatedly discovered. Of course, any such refusal could well be argued and considered an intervening proximate cause when applying applicable negligence principles, and such a scenario offers little logic for the doctrine's retention. AMI Civil 3d 503 (1989).
In conclusion, as noted above, the accepted-work rule has been thoroughly criticized as anachronistic and has provided unwarranted exceptions to general negligence principles. It has been said to have provided harsh results and many exceptions have been adopted to ameliorate such harshness. In our recent decision in Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997), we stated that, when a judicially created rule becomes outmoded or unjust in its application, it is appropriate for the judiciary to modify it. Id. at 151; see also Nelson v. Timberline Int'l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998). From our review of the substantial legal authority on the subject, we believe the better-reasoned view is that the accepted-work doctrine is both outmoded and often unnecessarily unfair in its application. We believe it would be a mistake to continue to apply a doctrine based upon privity of contract when the third party's injury is foreseeable.
For the reasons above, we reverse and remand.
Special Associate Justice Searcy Harrell joins this opinion; SMITH, J., dissents; BROWN, J., not participating.
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