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 dirt@umkc.edu

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.

Readers are encouraged to respond to or criticize this posting.

Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.


DIRT is an internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 - 15 messages per work day.

Daily Developments are posted every work day. To subscribe, send the message

subscribe Dirt [your name]



To cancel your subscription, send the message signoff DIRT to the address:


for information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “BrokerDIRT.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions.
To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]



To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT to the address:


DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:

Members of the ABA Section on Real Property, Probate and Trust Law or of the National Association of Realtors can subscribe to a quarterly hardcopy report that includes all DIRT Daily Developments, many other cases, and periodic reviews of real estate oriented literature and state legislation by contacting Antonette Smith at (312) 988 5260 or asmith4@staff.abanet.org


To be removed from this mailing list, send an email message to listserv@listserv.umkc.edu with the text SIGNOFF BROKERDIRT.

Please email manager@listserv.umkc.edu if you run into any problems.
See <http://www.umkc.edu/is/cs/listserv/unsubscribing.htm> for more information.