Sproles v. Associated Brigham Contractors, Inc. , 319 Ark. 94 ( 1994 )

Steele Hays, Justice.

Lynn Sproles brought this action against Nucor-Yamato Steel Company (NYS) and Associated Brigham Contractors, Inc. (ABC) for personal injuries suffered when he fell from an elevated platform at a steel mill operated by NYS. Sproles later died of unrelated causes while this appeal was pending and Susan Sproles was duly substituted as special administratrix of the estate of Lynn Sproles, deceased.

Around June 1, 1991, Lynn Sproles was employed by West Tennessee Maintenance Services, Inc. (WTM) as a pipe fitter and welder. WTM had contracted with NYS to perform structural modifications at the NYS mill. On June 11, Sproles and other employees of WTM were taking measurements as they worked on the elevated platform. The platform was welded to the structure of the plant approximately thirty-four feet above the mill floor. Its purpose was to provide access to a valve station. The platform was constructed of structural steel and measured 6'6" by 10' 9". It was guarded by a yellow perimeter fence. In a corner of the platform was an unguarded opening measuring 2'4" by 3'.

The platform was constructed between February and May of 1988 by appellee ABC pursuant to a contract with NYS. The platform had been installed at a different location, but about ten days before Sproles’s injury it was moved by WTM from its original location and welded to the plant wall at its current location.

As originally installed, the platform was equipped with a ladder extending from the plant floor through and above the opening in the platform. The ladder rose above the platform floor by some four feet and provided access to and from the platform. The ladder was surrounded by a metal cage from the floor of the plant to the floor of the platform. When WTM relocated the platform, the ladder and cage were not reinstalled, evidently because some equipment needed for such installation was not then available. In the absence of the ladder, workmen gained access to the platform by a “JLG” lift or bucket.

On the day in question Sproles had been on the platform earlier and was there a second time helping other WTM employees take measurements for the piping they were to install. Sproles stated that he was going back to the lift to return to the ground. He had unhooked the lanyard of his safety belt and backed into the hole, falling to the floor below.

Sproles filed suit against NYS and ABC alleging that the negligence of NYS and ABC proximately caused the injuries he sustained. The complaint also alleged that ABC was strictly liable as the supplier of a product in a defective condition rendering it unreasonably dangerous.

Sproles settled with NYS and ABC moved for summary judgment in reliance on the pleadings, exhibits, photographs, affidavits and depositions, asserting that there were no genuine issues of material fact and ABC was entitled to judgment as a matter of law. ABC argued the accepted work doctrine, intervening proximate cause, and that Sproles’s negligence was greater than ABC’s as a matter of law. In response, Sproles moved to deny summary judgment, incorporating all pleadings, motions, exhibits previously filed and the affidavit of M.I. Starns, an expert in the design and construction of steel mills and industrial plants.

The trial court considered the matters submitted and concluded that no factual dispute existed with respect to NYS having accepted the platform constructed by ABC, and that under the accepted work doctrine ABC could not be liable for injuries to third persons. Sproles argues on appeal that the accepted work doctrine should be abandoned and that it has no application to strict liability imposed on suppliers of defective products under Ark. Code Ann. § 4-86-102 (Repl. 1991). We affirm the trial court.

I

Accepted Work Doctrine

Appellant concedes that extending back over many years this Court has recognized and upheld the accepted work doctrine. The general rule is stated in Canal Construction Co. v. Clem, 163 Ark. 416, 260 S.W. 442 (1924):

Subject to some qualifications, among them the cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons, the general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties, by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor. The contractor remains liable, if at all, only to the proprietor for a breach of his contract.

We have applied the doctrine in numerous cases: Milam v. Midland Corporation, 282 Ark. 15, 665 S.W.2d 284 (1984); DeVazier v. Whit Davis Lumber Co., 257 Ark. 371, 516 S.W.2d 610 (1974); Southwestern Bell Telephone Co. v. Travelers Indemnity Co., 252 Ark. 400, 479 S.W.2d 232 (1972); Chesser v. King, 244 Ark. 1211, 428 S.W.2d 633 (1968); Reynolds v. Manley, 223 Ark. 314, 265 S.W.2d 714 (1954); Memphis Asphalt and Paving Company v. Fleming, 96 Ark. 442, 132 S.W. 222 (1910).

Appellant does not dispute the fact that NYS had accepted the work of ABC. Rather, it is her contention that the doctrine itself cannot withstand critical analysis and should be excised. She maintains the concept of privity of contract is the theoretical basis for the doctrine, which has become virtually extinct in American jurisprudence, citing Chapman Chemical Co. v. Taylor, 215 Ark. 630, 220 S.W.2d 820 (1949). Appellant undergirds the argument for abandonment of the accepted work doctrine with forceful authority: Restatement of Torts (Second) § 385; W. Keeton, et al, Prosser & Keeton on Torts § 104A (5th ed. 1984); McDonough v. Whalen, 365 Mass. 506, 313 N.E.2d 435 (1974); Johnson v. Oman Construction Co., 519 S.W.2d 782 (Tenn. 1975); Kistrek v. Catron, 644 P.2d 480 (Kan. 1982); Nichol v. Corntassel, 852 P.2d 583 (Mont. 1993).

Appellant has made an impressive argument for reexamining the accepted work doctrine which we will do, without preconception, when the occasion arises, though we wish no inferences to be drawn from this assertion. However, for reasons to be explained, we are not persuaded that this is the case in which to overturn our many precedents applying the accepted work doctrine and we believe the trial court held correctly.

Several factors influence our conclusion. First, this platform was constructed by ABC over three years before Sproles’s injuries. Second, it was constructed by ABC according to the directions and instructions of NYS.¹ Third, the platform was approved and accepted by NYS upon completion and ABC had no further involvement with it. Fourth, on or about June 1, 1991, the platform was detached from its original location by Sproles’s employer, WTM, and moved to another location in the mill and reattached to the structure of the plant without any involvement by ABC. Fifth, when the platform was relocated, the ladder and cage appendages were removed and were not reassembled at the new location. Sixth, the opening in the platform had been called to Sproles’s attention and he had been specifically instructed to cover it before working on the platform.²

Sproles acknowledged that the opening was pointed out to him and that if the hole should have been covered it would have been his responsibility as foreman of the work crew to see that it was done. He explained that he had disconnected his safety belt to leave the platform and simply backed into the opening.

In short, this structure had been built by ABC three years before the incident, approved and accepted by NYS, utilized by NYS and others, including the personnel of WTM and, finally, removed and reinstalled in an altered form by WTM, Sproles’s employer. We believe the acceptance of the work by NYS under the circumstances of this case relieves ABC of liability, if any existed, as a matter of law.

II

Strict Liability

Appellant’s second assignment of error involves the Arkansas Product Liability Act of 1979, encoded at Ark. Code Ann. § 4-86-101-104 (Repl. 1991). Appellant argues that the platform was supplied in a defective condition which rendered it unreasonably dangerous within the meaning of the act. We disagree, because it is clear that ABC was not a supplier “engaged in the business of manufacturing assembling, selling, leasing or otherwise distributing the product[.]”

The unchallenged testimony was that ABC was not engaged in the business of manufacturing a product as contemplated by the act. The proof was that ABC was a contractor, primarily specializing in concrete. It was not engaged in the business of manufacturing platforms. It had contracted with NYS to perform concrete, plumbing and pipe fitting services at the NYS mill. True, it constructed one or more (we are not told how many) platforms for NYS in 1988, but that was a departure from its regular business activity. More important, the platforms were constructed according to the plans and directions of NYS from materials supplied by NYS, on the premises of NYS and ABC’s contribution to the project was merely providing labor. ABC has had no involvement with the platforms since their completion in 1988. In short, in the circumstances here presented, ABC was not a supplier engaged in the business of manufacturing a product within the meaning of the Arkansas Product Liability Act. The case is analogous to Milam v. Midland Corp., 282 Ark. 15, 665 S.W.2d 284 (1984) in two respects. There we affirmed summary judgment granted to a developer of a residential subdivision, Midland Corporation. The appellant had asserted causes of action for negligence and strict liability, alleging that Midland had made a street too narrow and a curve too sharp. We held that a developer is not engaged in the business of manufacturing, assembling, selling, leasing or distributing streets. The opinion also noted the absence of proximate cause, in that the plaintiff, Milam, could easily have averted a collision with an oncoming vehicle simply by being attentive.

For the reasons stated, the order of summary judgment is affirmed.

Dudley, J., dissents.

1 Mr. Norman L. Maero, construction manager at NYS, testified that ABC constructed the platform according to the directions of NYS. Record, p. 35. That statement was unchallenged.

2 Record, pp. 64, 67, 82.