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.
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