In Georgia, road construction and traffic jams have become unpleasant and unavoidable facts of life to motorists navigating its interstates.
VOLUME 21, NO. 122 MARCH 2009
In Georgia, road construction and traffic jams have become unpleasant and unavoidable facts of life to motorists navigating its interstates. With the reliance upon automobile travel comes the risk of multi-vehicle accidents, including garden-variety fender benders, such as sideswipes and rear-enders, as well as more serious occurrences involving bodily injury or death. Some accidents may involve only one vehicle where drivers sustain personal injury or property damage from running into signs or debris impeding the road. Injured motorists seeking damages arising from car accidents taking place in or around road construction projects not only sue other drivers involved, but often the contractor on the project as well as the county or the Georgia Department of Transportation (DOT). In automotive litigation suits involving allegations of negligent road construction, the following question often arises in the defense of the contractor and its insurer: should a road construction contractor who follows the specific instructions given to it to the satisfaction the county or DOT be held responsible for the plaintiff’s damages, even if the contractor is negligent in performing the work? Under Georgia’s acceptance doctrine, the answer is “no,” subject to a few exceptions.
On February 9, 2009, the Supreme Court of Georgia addressed the question of whether the acceptance doctrine, a common-law principle that was adopted by Georgia over a hundred years ago, should remain viable. In Bragg v. Oxford Construction Co., 2009 WL 290093 (Ga.), the Braggs sued Oxford Construction Co. after a serious car accident. Oxford had contracted with Dougherty County to repave and overlay asphalt patches on a county owned and maintained road where the accident occurred. The record showed that Oxford performed its work in accordance with the county’s specific instructions and to the county’s satisfaction. In applying the acceptance doctrine to the facts in the record, the trial court granted summary judgment to Oxford and Court of Appeals affirmed. Id.
In a narrow 4-3 decision, Justice Harold Melton wrote for the majority, which upheld the acceptance doctrine in stating that “the dissent takes this case as an opportunity to reject this established principle of law, and to propose the ad hoc invention of a new legal doctrine…[t]his is exactly the manner in which new law should not be created, because it is not the role of this Court to formulate new law in the abstract, as the dissent has proposed here.” Id. Justice Melton also indicated that that the rejection of the acceptance doctrine by other jurisdictions was not a sufficient basis for Georgia to do the same.
The acceptance doctrine has long provided that a contractor is not liable to the injuries to a third person after the contractor has completed his work and the work has been accepted by the employer, even though the injury results from the contractor’s negligence. Young v. Smith & Kelly Co., 124 Ga. 475, 52 S.E. 765 (1905). However, certain exceptions to the doctrine do apply in situations where the contractor is negligent in the performance of the work, where the work is found to be a nuisance per se, or inherently or intrinsically dangerous or so negligently defective as to be imminently dangerous to third persons.
The acceptance doctrine has a slightly different application with regards to non-negligent contractors. In 1990, the Supreme Court of Georgia applied the doctrine to the facts in David Allen Co. v. Benton, 260 Ga. 557, 558, 398 S.E.2d 191 (1990). In Benton, a contractor hired to construct a sidewalk was sued by a plaintiff who had tripped on a loose brick “paver” and sustained injuries. The court, in noting that the contractor complied in every regard with the plans provided to it, clarified the acceptance doctrine as applied to non-negligent contractors in determining that a contractor that does not hold itself out as an expert in the design of work such that is involved in the controversy, performs its work without negligence, and the work is approved to the satisfaction of the owner or the one who contracted for the work on the owner’s behalf, the contractor is not liable for injuries resulting from its work. Benton at 558. Accordingly, the exceptions for inherently or intrinsically dangerous work, for nuisances per se, and work so negligently defective as to be imminently dangerous apply only to cases where the contractor is found to be negligent in performing its work. Id.
Like Bragg, the acceptance doctrine has been routinely applied by Georgia courts in the context of lawsuits involving allegations of negligent road construction. A contractor for the State engaged in work on a public project is not liable for injury or damage to private property resulting from the work performed unless the contractor held itself out as an expert in the design of the work at issue and that damage or injury results from the contractor’s negligence or willful tort. Hubbard v. Department of Transportation, 256 Ga. App. 342, 568 S.E.2d 559 (2002). In Hubbard, a contractor entered into a contract with the Georgia DOT to widen highway I-285, including construction of an on-ramp. While construction was underway, the plaintiff driver’s car stalled on the ramp and a chain-reaction of collisions ensued, involving four other cars. The plaintiff sued the other drivers as well as the Georgia DOT and two contractors involved with the road construction work. In affirming the trial court’s decision to grant the contractors’ motions for summary judgment, the Georgia Court of Appeals found that the contractors were not responsible for the design of the on-ramp and were not negligent in their performance of their work. Rather, both contractors followed the explicit directions of the Georgia DOT, which had responsibility for the construction and maintenance of the state highway system pursuant to statute. Id. Georgia law provides:
The [DOT] shall plan, designate, improve, manage, control, construct, and maintain a state highway system and shall have control of and responsibility for all construction, maintenance, or any other work upon the state highway system and all other work which may be designated to be done by the department by this title or any other law.
Critics of the acceptance doctrine find it difficult to justify why a contractor should be insulated from liability to third parties based solely on the fact that its employer accepted its work. The State of Washington recently repudiated the acceptance doctrine in 2007 and now follows the “foreseeability rule,” which is now followed by the majority of the states. See Davis v. Baugh Indus. Contractors, Inc., 159 Wash. 2d 413, 150 P.3d 545 (2007). The foreseeability rule or “modern rule” provides that a construction contractor is liable for injury to a third person even where the contractor’s work is accepted by the owner where it was reasonably foreseeable that a third person would be injured by the work on account of the contractor’s negligence or failure to disclose a dangerous condition known to the contractor.
Supporters of the foreseeability rule argue that that its application lessens the harsh result potentially achieved by application of the acceptance doctrine. For example, Justice Carol Hunstein, in her dissenting opinion in Bragg, disagreed with Georgia’s continued adherence to the acceptance doctrine and discussed the foreseeability rule, noting that the foreseeability rule had been adopted by thirty-three states of the forty-four states that have addressed the acceptance doctrine. Justice Hunstein also indicated that the acceptance doctrine relied upon “principles long since disapproved,” including the privity requirement, a concept originating from contract law rather than tort law. Bragg at *2. The privity requirement limits the liability of a contractor to the person it contracted with to do the work or one in privity with him.
However, pursuant to the majority’s holding in Bragg, contractors and their insurers facing lawsuits involving allegations of negligent construction may continue to raise the acceptance doctrine as a defense. As traffic jams and ongoing road construction remain a fact of life for Georgia motorists, the acceptance doctrine, described by Justice Melton as a “long standing application…that people have come to rely on,” remains viable as a matter of law.