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Harrington v. Labelle's of Colorado12/6/1988
. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully." 111 N.E. at 1053
In Hanna v. Fletcher, the court considered a claim for personal injury by a plaintiff who sued a construction contractor for negligent repair of a stair railing on an existing building Several years after the repair work was completed and paid for, the railing collapsed during use and caused the plaintiff to fall into the stairwell, which resulted in serious injuries. The court concluded there was no reason to differentiate between the manufacturer of goods and a building contractor "for in each case negligent conduct often may be expected to result in injury to one reasonably foreseen as a possible user." Hanna, 231 F.2d at 474. The court applied Judge Cardozo's analysis and held the construction contractor liable for his negligent repair of the railing
This Court has followed MacPherson and allowed recovery for negligence asserted against the manufacturers of automobiles [see Rix v. General Motors Corp. (Mont. 1986), [222 Mont. 318,] 723 P.2d 195, 43 St.Rep. 1296] and manufacturers of farm machinery [see Brown v. North American Manufacturing Co. (1978), 176 Mont. 98, 576 P.2d 711]. We concluded in those cases that it was no longer appropriate to bar recovery on theories such as those identified in connection with the accepted work doctrine, that is a lack of contractual privity, or that there would be excessive litigation, or similar theories. Given our rules of liability in cases where negligent construction by a manufacturer may cause injury , I see no reason why we should not extend that reasoning to apply to negligent construction by a contractor. Certainly the potential for injury due to negligent construction by a contractor is just as great as with the negligent manufacturing of a consumer good I conclude that this Court should have reviewed the reasoning upon which the denial of liability is founded. While the facts presently before us may indicate a rather weak claim on the part of Mr. Harrington with regard to the proving of elements of negligence against Billings Sweeping Service, there is a proper legal theory which should allow him to continue with his cause of action
I recognize there may be limitations which should be placed upon a theory of recovery against a building contractor. But an absolute bar to liability is not appropriate. The majority has failed to explain why a contractor should not be responsible for its own negligence. For this reason, I believe that this Court should have evaluated what I see as an outmoded concept to redefine our rules of liability in a case such as this. Thus, liability would more appropriately be predicated on the presence or absence of negligence on the part of the various parties involved, including the construction contractor
MR. JUSTICE HUNT concurs in the foregoing dissent of MR JUSTICE WEBER
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