Claims for personal injuries that can be connected in some way to construction work often include allegations that the contractor was negligent. Even if the injured party sues only the property owner, the owner will often seek to pass this liability through to the contractor. In many states, such negligence claims are barred by the acceptance doctrine, which limits contractor liability to third parties for injuries that occur after the owner has accepted the work.
A recent decision by the Missouri Court of Appeals illustrates and applies this rule. In Wilson v Dura-Seal and Stripe, Inc., No. ED 104570 (Mo. Ct. App. Mar 21, 2017), the plaintiff alleged that she tripped in an area paved by Dura-Seal and Stripe, Inc. Dura-Seal paved a drive lane, but the paving did not extend all the way to the curb. The result was a gutter area and a resulting height differential. Ms. Wilson claimed she tripped on and because of the height differential. Ms. Wilson sued the school district for which Dura-Seal did the work. The school district then sued Dura-Seal.
The trial court granted summary judgment for Dura-Seal because the work had been accepted. The court of appeals affirmed. Under Missouri law, a contractor is not liable for third party personal injuries after the owner accepts the work. The acceptance doctrine is founded on the assumption that the owner has made a reasonably careful inspection of the work of the contractor and the owner knows of the defects, if any. The owner then “accepts the defects and negligence that caused them as his own.”
Formal acceptance not required
The court also held that there is no requirement for formal documentation of acceptance. In her effort to circumvent the acceptance doctrine, Ms. Wilson pointed to four undisputed facts:
- There was no writing or other communication to evidence acceptance.
- There no evidence that the work was performed by Dura-Seal in accord with the project specifications (there were none).
- There was no evidence that anyone from Dura-Seal had actually inspected the work.
- There was no testimony that Dura-Seal’s work complied with industry standards.
Ms. Wilson did not sway the court of appeals. In the court’s view, Dura-Seal need not prove that its work was accepted. To the contrary, Ms. Wilson must prove that there was no acceptance.
Further, the court found that there was evidence of acceptance. Dura-Seal had not performed work on the drive lane for at least two months prior Ms. Wilson’s injury. The school district paid Dura-Seal in full. The school district had made use of the premises. Though Dura-Seal came back at the school district’s request to work on the drive lane and gutter, it did so only after Ms. Wilson’s injury. In the court’s view, Dura-Seal established that it was not in control of the premises and that it did not have a right to control the premises.
Imminent danger
The court also rejected Ms. Wilson’s attempt to invoke an exception to the acceptance doctrine. Ms. Wilson argued that the acceptance doctrine was inapplicable because the drive lane constructed by Dura-Seal was imminently dangerous.
The court recognized that such an exception exists. It applies even after the owner has accepted the contractor’s work, but it is available only under narrow circumstances. The structure must be so defectively constructed that it was imminently dangerous to the safety of others. The defect must be so hidden and concealed that a reasonable and careful inspection would not have disclosed it. Further, the defect must be known to the contractor and unknown to the owner or other parties who accept the work.
The imminent danger exception did not save Ms. Wilson’s claim against Dura-Seal. The drive lane and gutter were in plain view. The road was in plain view. The court ultimately concluded that a reasonably careful inspection would have found the defect.
Further reading—
The Spearin Doctrine on Missouri public projects (Mar. 7, 2017)