
    KAPALCZYNSKI v. GLOBE CONSTRUCTION COMPANY
    1. Negligence — Contracts—Accepted Work Doctrine — Liability —Third Person.
    The accepted work doctrine whieh insulates a contractor from liability for foreseeable harm to third persons resulting from his negligent performance of a completed contract, is not the law in Michigan.
    2. Negligence — Contracts — Privity — Contractors — Third Persons.
    Michigan courts have abandoned the privity of contract requirement in third-person negligence actions against contractors.
    3. Negligence — Manufacturers—Contractors—Liability.
    There is no basis for a distinction between the liability of products manufacturers and contractors for negligence.
    4. Negligence — Contractors—-Construction—Time Lapse — Injury —Proximate Cause.
    The passage of time does not necessarily confer immunity on a wrongdoer; a lapse of time between construction and injury is simply one of the factors the trier of fact should consider in deciding whether a contractor’s original negligence was the cause of injury.
    5. Negligence — Joint Tortfeasors- — Governmental Immunity — Liability.
    The governmental tort liability statute did not eliminate the common-law liability of nongovernmental tortfeasors whose concurring acts of negligence with a governmental entity contribute to plaintiff’s loss (MOLA § 691.1401 et seg.).
    References for Points in Headnotes
    [1] 38 Am Jur, Negligence §§ 20-22.
    [2] 38 Am Jur, Negligence §§ 21, 22.
    [3] 46 Am Jur, Sales § 12.
    [4] 38 Am Jur, Negligence §§ 50, 55.
    [5, 6] 38 Am Jur, Negligence § 64.
    49 Am Jur, States, Territories and Dependencies §§ 91, 96.
    39 Am Jur 2d, Highways, Streets, and Bridges § § 112, 343, 344, 346.
    [7] 39 Am Jur 2d, Highways, Streets, and Bridges §§ 363, 364, 390, 432, 433.
    
      6. Negligence — Joint Tortfeasors — Governmental Immunity.
    The governmental tort liability aet reveals neither language nor intent to limit liability solely to governmental entities and, in defining the extent of sovereign immunity in certain areas, the legislature did not alter the tort liability of nongovernmental tortfeasors whose negligence may concur with negligence of a governmental entity in contributing to a plaintiff’s loss (MOLA § 691.1401 et seq.).
    7. Negligence — Highways—Construction Contracts — Liability.
    Defendant construction contractor who had resurfaced a city street in a manner claimed to be negligent by plaintiff who was injured about a year after the work was done by falling into a hole in the street at an access point for a gas line was not insulated from liability by the fact that the eity had accepted the work or by the governmental immunity of the eity, and accelerated judgment in favor of the contractor was error.
    Appeal from Manistee, Charles A. Wiekens, J.
    Submitted Division 3 January 8, 1969, at Grand Rapids.
    (Docket No. 4,578.)
    Decided October 2, 1969.
    Complaint by Thomas Kapalczynski and Kathleen Kapalczynski against Globe Construction Company and Michigan Consolidated Gas Company to recover damages resulting from injuries sustained by Kathleen Kapalczynski when she fell into a street hole at an access point to gas transmission lines. Accelerated judgment for defendants. Plaintiffs appeal.
    Reversed and remanded for trial.
    
      Donald G. Jennings, for plaintiffs.
    
      Hathaway, Latimer, Clink & Robb (William T. Kerr, of counsel), for defendant Globe Construction Company.
    
      John E. Hart, for defendant Michigan Consolidated Gas Company.
    
      Before: Levin, P. J., and Holbrook and Danhop, JJ.
   Levin, P. J.

The plaintiffs, Thomas Kapalczynsld and Kathleen Kapalczynsld (husband and wife), commenced this action to recover damages resulting from injuries sustained by Kathleen Kapalczynsld when she fell into a hole in a street in Manistee, Michigan. The hole was at an access point to gas transmission lines running under the street. The access point and the transmission lines are owned by defendant Michigan Consolidated Gas Company. Defendant Globe Construction Company had resurfaced the street in September, 1965, a little over a year before the date, November 10, 1966, on which Mrs. Kapalczynsld was injured. The plaintiffs covenanted not to sue the city of Manistee before this action was commenced.

The trial judge granted a motion for accelerated judgment and dismissed the complaint. He ruled that the city was primarily liable and that the defendants had no contractual obligation to the plaintiffs. For purposes of this appeal, we assume the truth of the plaintiffs’ pleaded allegations that Mrs. Kapalczynsld’s injuries were caused by the defendants’ negligence.

The principal issue concerns the liability of a contractor after completion and acceptance of negligently-done work. In many jurisdictions the accepted work doctrine has insulated a contractor from liability for foreseeable harm to third persons resulting from his negligent performance of a completed contract. The conceptual bases of this doctrine are the absence of privity of contract between the contractor and the third person, the third person’s nonreliance on the contract between the defendant contractor and the owner, and the asserted lack of a “proximate” cansal connection because of the intervening negligence of the owner in accepting and thereafter maintaining the work.

Most courts have grafted exceptions to this rule of nonliability. Contractors have been held liable in cases where it was shown that the defective condition was imminently dangerous to life, or the contractor knew of the defect or willfully concealed such knowledge, or the condition created a nuisance, or the plaintiff’s use was intended or anticipated or, as it was sometimes put, the plaintiff was “impliedly invited.”

For reasons which we will now relate, we have concluded that the accepted work doctrine is not the law in Michigan and, accordingly, remand this case for trial. This conclusion is based on a series of cognate decisions establishing the right of injured persons to recover in products liability cases.

The leading case in Michigan (and a leading case in the law nationally) is Spence v. Three Rivers Builders & Masonry Supply, Inc. (1958), 353 Mich 120, where a manufacturer of cinder building blocks was held accountable for property damage caused by defective blocks which had been used in the construction of the plaintiff’s home. The Court viewed the question before it to be (p 128) “whether we are going to continue to be hobbled by such an obsolete rule [privity] and its swarming progeny of exceptions.” The Court abandoned the privity requirement after a thorough résumé of its complex history and a review of the historic decision in MacPherson v. Buick Motor Co. (1916) 217 NY 382 (111 NE 1050).

Three Rivers was followed by Manzoni v. Detroit Coca-Cola Bottling Company (1961), 363 Mich 235; Barefield v. La Salle Coca-Cola Bottling Company (1963), 370 Mich 1; Hill v. Harbor Steel & Supply Corporation (1965), 374 Mich 194, and, most recently, Piercefield v. Remington Arms Company, Inc. (1965), 375 Mich 85, where an innocent bystander, injured when the barrel of a shotgun exploded because of a claimed defect in the ammunition used, was allowed to proceed to trial against the manufacturer of the ammunition, and the wholesaler and retailer. In a cogent opinion summarizing the law developed in the cited cases, the Piercefield Court stated that an injured plaintiff may recover upon proof of (pp 98, 99) “a defect attributable to the manufacturer and a causal connection between the defect and the injury or damage of which he complains.”

Whether the accepted work doctrine has survived this emphatic rejection of the privity requirement in products liability cases, is, we believe, now a somewhat rhetorical question.

Although the accepted work doctrine is referred to in Benton Harbor Malleable Industries, Inc. v. Pearson Construction Company (1957), 348 Mich 471, the Court did not base its decision on that doctrine. The plaintiff (who sued as subrogee of a third person) had employed the defendant contractor to install a large complex machine in the plaintiff’s plant. The plaintiff had supervised the installation of the machine with bolts that it supplied. The Supreme Court ruled (p 481) that the contractor was not liable for an injury which occurred when one of the devices broke loose from its moorings because (1) there was no proof that the defendant was negligent, (2) the plaintiff’s negligence in failing to inspect the machine was the cause of the injury, and (3) plaintiff could not hold the defendant responsible for fastening the device with bolts furnished by, and inserted under, plaintiff’s orders and instructions.

In Benton Harbor, the plaintiff conceded that the (p 479) “general rule is that an independent contractor is not liable for injuries to third parties, where he has completed the work and turned it over to the contraetee, but claim[ed] there is an exception where * * * defendant’s work was so negligently performed as to be imminently dangerous to third parties.” The concession of the Benton Harbor plaintiff that the accepted work doctrine is the “general rule” means that the question whether the accepted work doctrine is part of our jurisprudence was assumed, not decided, in Benton Harbor.

In Sitta v. American Steel & Wire Division of U. S. Steel Corporation (CA6, 1958), 254 F2d 12, a products liability case involving a defective excavating machine, Benton Harbor was interpreted not as a departure from the modern rule eliminating the requirement of privity, but as a case where the contractor did not cause the injury. Benton Harbor’s precedential value is further undermined by the fact that two of the cases which it cites have been overruled; both New Jersey and New Mexico have now adopted the so-called modern rule.* ***

A final reason for concluding that the accepted work doctrine is not part of our law is its overwhelming rejection in other jurisdictions. Most courts which have recently considered the question have concluded that there is no basis for a distinction between products liability and contractor’s liability. The distinctions often advanced to justify a different rule of law for contractors than the rule now almost universally applicable to manufacturers, such as the lack of a standard product, the greater difficulty in finding defects in a contractor’s “special” job, the more thorough inspection given a contractor’s work, and the greater time lapse between construction and injury, have been treated simply as problems of proof in individual cases rather than justifications for a different rule of law. Rather than perpetuate the quagmire of exceptions to the accepted work doctrine, once also characteristic of the products liability sector, these courts chose fully to accept the MacPherson precedent — a resolution advocated by well-regarded commentators.

In this connection the recent decision of our Supreme Court in Hill v. Harbor Steel & Supply Corporation, supra, is particularly relevant. The estate of a workman who lost his life when a manifold welding unit exploded was allowed to maintain an action against the contractor that “designed and built” the unit for the workman’s employer. The unit, thus, was not a “standard” product, it was a “special” job; it could have been more thoroughly inspected. The unit had been delivered to the deceased workman’s employer nine months before the explosion. Yet the third person was allowed to recover for a loss caused by the contractor’s negligence.

Several of the opinions of other courts, concerning factual situations analogous to the case at bar, are worthy of detailed discussion. In Strakos v. Gehring (Tex, 1962), 360 SW2d 787, a pedestrian was injured when he stepped into a hole left unfilled alongside a road. Both the contractor employed by the State of Texas to resurface the road and the contractor who was to do the necessary dirt work were named as defendants. The court emphasized that (p 790):

“Our rejection of the ‘accepted work’ doctrine is pot an imposition of absolute liability on contractors. * * * The effect of our holding is to bring [the contractor] within the general rules of tort litigation, where the jury will resolve the basic questions of negligence and proximate cause, subject to the usual guidance and review by the trial and appellate courts.”

The ■ court observed that, except where reasonable minds cannot differ, the issues of intervening negligence and causation are to be resolved by the trier of fact.

In Baker v. Fryar (1966), 77 NM 257 (421 P2d 784), when the defendant contractor completed his work a hole was left near the curb of a roadway. The plaintiff stepped into the hole. The trial court found as a matter of law that the contractor’s negligence was a remote cause of the injury. The New Mexico Supreme Court rejected this determination, saying that the failure of an owner to inspect or to act to prevent harm after discovering that work has been done improperly is not necessarily a superseding cause. Such a failure of an owner subjects him to a liability which is concurrent with that of the1 contractor, but does not, as a matter of law, absolve the contractor of his negligence.

Russell v. Arthur Whitcomb, Inc. (1956), 100 NH 171 (121 A2d 781), involved a sewer line excavated and filled in by the defendant contractor who negligently left a depression in the road. Traffic passing-over the depression caused vibrations which damaged the plaintiff’s basement. The New Hampshire Supreme Court adopted the view that construction contractors are liable to third persons for injuries suffered after the owner’s acceptance of negligently-done work. Similarly, see Krisovich v. John Booth, Inc. (1956), 181 Pa Super 5 (121 A2d 890), where the plaintiff fell on a sidewalk because of the defective backfill of an excavation for a‘gas line.

Several cases have dealt with this issue, in the factual context of a considerable lapse of time between the completion of the contractor’s work and the injury and, nevertheless, allowed the injured plaintiff to recover. They hold that lapse of time is merely one of the factors to be considered by the trier of fact in deciding whether the contractor’s original negligence was the cause of the injury. The passage of time does not necessarily confer immunity on a wrongdoer.

The defendants also argue that when, the legislature defined the extent of sovereign immunity from tort liability (PA 1964, No 170), the governmental entity (city of Manistee in this ease) became the exclusive source of liability. The defendants contend that when a governmental entity is involved, Act 170 has eliminated the common-law liability of nongovernmental tortfeasors whose concurring acts of negligence contributed to plaintiff’s loss. A careful examination of the .statute reveals neither language nor intent to limit liability solely to governmental entities. In defining the extent of sovereign immunity in certain areas, the legislature in Act 170 did not alter the tort liability of nongovernmental tortfeasors.

Eeversed and remanded for trial. Costs to plaintiffs.

All concurred. 
      
       The gas company did not file a brief in our Court.
     
      
       Prosser, Law of Torts (3d ed), § 99, pp 694, 695; 2 Harper & James, The Law of Torts, § 18.5, p 1041.
     
      
       Similarly, see Serijanian v. Associated Material & Supply Co. (1967), 7 Mich App 275, involving defective bricks in the plaintiff’s home.
     
      
       Cf. Spector Motor Service, Inc. v. Walsh (CA 2, 1943), 139 F2d 809, 814, 823, remanded on other grounds Spector Motor Service, Inc. v. McLaughlin (1944), 323 US 101 (65 S Ct 152, 89 L Ed 101); Putman v. Erie City Manufacturing Company (CA 5, 1964), 338 F2d 911, 921, 923; Necaise v. Chrysler Corporation (CA 5, 1964), 335 F2d 562, 572, 573.
      See, also, Picard v. United Aircraft Corporation (CA 2, 1942), 128 F2d 632; Maxfield v. Denver and R. G. W. R. Co. (1958), 8 Utah 2d 183 (330 P2d 1018); Watts v. Pioneer Corn Company, Inc. (CA 7, 1965), 342 F2d 617; Gardella v. Chandler (CA 2, 1949), 172 F2d 402, 409, Judge Frank’s opinion.
     
      
       We are persuaded that Benton Harbor should not be read as holding as a matter of law that a contractor’s negligenee is never the cause of the injury when the owner has had an opportunity to inspect and failed to do so.
      Causation is generally a question of faet, not of law. Barely will the faet that the plaintiff’s loss is caused by the concurrent negligence of two tortfeasors be held as a matter of law to relieve one of them of liability because the negligenee of the other intervened. See Strandholm v. General Construction Company (1963), 235 Or 145 (382 P2d 843); 2 Restatement of Torts 2d, § 452, p 482.
      In their discussion of intervening cause, Professors Harper and James observed:
      “In the ease of builders and other contractors in construction work, a rule once prevailed that exonerated the contractor for injuries to third persons caused by defective construction but occurring after the employer had accepted the work. This will be recognized as an offspring of the privity rule and the last-wrongdoer rule. Both lines of holdings represent anachronistic and unwarranted exceptions to general negligenee principles and are being progressively repudiated by the courts.” 2 Harper & James, The Law of Torts, § 28.10, pp 1556, 1557.
      It was entirely understandable that the Benton Harbor Court eon-eluded that a loss caused by plaintiff’s own neglect should bar recover j, but here the defendants claim that the negligenee of another tortfeasor [the city] intervened.
      Furthermore, there is no evidence that the eity was aware of the alleged defeet and, if it was, for how long before the accident it had such knowledge. Nor is there anything in the record showing that the city failed to inspect, and that if it had done so it would have discovered the defect. No affidavits or other evidence were submitted in support of plaintiff’s motion.
     
      
       The plaintiff in Benton Harbor was the subrogee of its injured employee who had obtained a recovery under the workmen’s compensation aet. Tlie court, nevertheless, counted against the plaintiff its own neglect as a separate reason for denying recovery.
     
      
       See Chapman v. Buder (1968), 14 Mich App 13, 20, and cases therein cited.
     
      
       Compare Miller v. Davis & Averill, Inc. (1948), 137 NJL 671 (61 A2d 253), with Totten v. Greezen (1968), 52 NJ 202 (245 A2d 1), and Wood v. Sloan (1915), 20 NM 127 (148 P 507, LRA1915E 766) with Baker v. Fryar (1966), 77 NM 257 (421 P2d 784).
     
      
       See cases discussed and cited infra.
      
     
      
       See 2 Harper & James, The Law of Torts, § 18.5, pp 1039-1043, supp to vol 2, p 74; Restatement, Torts, 2d, § 385, p 293; Prosser, Law of Torts (3d ed), § 99, pp 693-696.
      Similarly, see Building Contractors Liability: An Extension of MacPherson v. Buick, 24 Ind LJ 286 (1949); Construction and Repair Contractors—Liability to Third Persons After Acceptance of Work by Owner, 19 La L Rev 221 (1958); Note, 62 Harv L Rev 145 (1945).
      The changing weight of authority appears upon a comparison of the annotations in 13 ALR2d 191 (1950) and 58 ALR2d 865 (1958) ; both annotations are entitled “Negligence of building or construction contractor as ground of liability upon his part for injury or damage to third person occurring after completion and acceptance of the work.”
     
      
       For other well-reasoned decisions rejecting the accepted work doctrine, see Talley v. Skelly Oil Co. (1967), 199 Kan 767 (433 P2d 425, 432) (overhead heater negligently installed); Strandholm v. General Construction Company (1963), 235 Or 145 (382 P2d 843); Dow v. Holly Manufacturing Company (1958), 49 Cal 2d 720 (321 P2d 736); Schipper v. Levitt & Sons, Inc. (1965), 44 NJ 60 (207 A2d 314). In Schipper the Supreme Court of New Jersey applied the rule of the landmark case of Henningsen v. Bloomfield Motors, Inc. (1960), 32 NJ 358 (161 A2d 69, 75 ALR2d 1) (cited with approval in Three Rivers) to a mass production builder of private homes. ScMpper was followed in Totten v. Greezen (1968), 52 NJ 202 (245 A2d 1) in an action against the architect, contractor and heating contractor of an apartment house.
      Similarly, see Cosgriff Neon Co. v. Mattheus (1962), 78 Nev 281 (371 P2d 819, 822); Fisher v. Simon (1961), 15 Wis 2d 207 (112 NW2d 705); Moran v. Pittshurgh-Des Moines Steel Co. (CA 3, 1948), 166 F2d 908, 916.
     
      
       See Hanna v. Fletcher (1956), 97 App DC 310 (231 P2d 469, 58 ALR2d 847) (defectively installed railing collapsed after seven years); Leigh v. Wadsworth (Okla, 1961), 361 P2d 849 (roof of back porch fell 2-1/2 years after completion of house); Hale v. Depaoli (1948), 33 Cal 2d 228 (201 P2d 1, 13 ALR2d 183) (porch railing collapsed 18 years after installation).
     
      
       MCLA § 691.1401 et seq. (Stat Ann 1969 Rev § 3.996[101] et seq.).
      
     