Daily Development for Friday, August 20, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri firstname.lastname@example.org
CONSTRUCTION LAW; PERSONAL INJURY; CONTRACTOR NEGLIGENCE: Where a contractor’s construction decisions in building a sidwalk lead to maintenance issues in the form of separation of slabs more than a decade after construction, the contractor does not owe a duty of care to a non-contracting third party with respect to the conditions resulting from the failure of the owner to address such issues.
Dennebaum v. Rotterdam Square, L.P., 776 N.Y.S.2d 136 (A.D. 3 Dept. 2004).
Plaintiff tripped on a sidewalk installed 13 years earlier by a contractor pursuant to a contract with a mall owner. Plaintiff sued the mall owner, which brought a third party action against the contractor. The plaintiff then added the contractor as a defendant, alleging that the contractor negligently used the wrong type of joints between slabs in the sidewalk. Plaintiff’s expert witness’ testified that the contractor had used “expansion and contraction joints,” while the expert claimed that it should have used “contraction joints” only, in order to avoid the risk of separation of the slabs.
The court concluded that the trial court should have granted summary judgment to the contractor both in the plaintiff’s action and the mall owner’s action for common law and contractual indemnification.
The court held that the failure to use a particular type of joint in sidewalk construction that resulted in an uneven contour between slabs 13 years after construction does not qualify as “the creation or exacerbation of a dangerous condition” and therefore does not give rise to a duty of care by the contractor to the non-contracting pedestrian or to the owner. As a matter of law, this was not the “launching of an instrument of harm” that would be actionable thirteen years later. As the contractor had undertaken no continuing maintenance or inspection responsibilities, the contractor had no duty of care respecting subsequent conditions of the sidewalk. The court held that the contract indemnification claim was “meritless” without specifying why.
Comment: What constitutes “reasonable forseeability” or “unreasonably dangerous manufacture” obviously are not always questions to be submitted to juries. Courts perform a monitoring function to protect inappropriate liability claims that go beyond what society ought to expect of parties conducting their business affairs. This is a good example of that “safe harbor” approach. But its often hard to find a precedent sufficiently close on the facts to your situation, and otherwise there really isn’t much standard by which to judge. “Launching an instrument of harm” is colorful, but not particularly exact. If you represent a contractor, you may want to hang on to this one.
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