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In a wrongful death lawsuit against a general contractor for the death of an individual whose car slid into a river from a highway on which the contractor had completed work seven months earlier, the plaintiff argued a premises defect theory of liability against the contractor based on a fifteen-foot gap between the end of a guardrail and a bridge embankment.  Even assuming for purposes of the argument on summary judgment that the contractor’s work created an unreasonably dangerous condition at the site, the court held there was no duty owed by the contractor to rectify that condition since the contractor was contractually required to adhere strictly to the project specifications, and it did as it was required, with approval of the engineer and acceptance by the project owner.   No duty to warn the public was owed by the contractor since the contractor did not own the property or highway right-of-way, and was not in a position to erect permanent signs or other devices to warn the public of the gap.  Moreover, the court explained, the contractor’s “contract with the County required absolute compliance with the contract specifications, and there is summary judgment evidence that any deviation from the specifications could have jeopardized federal funding for the project. Further, it is undisputed that [the engineer] certified [the contractor’s] compliance with the contract specifications and the County accepted and paid [the contractor] for the work.”

The court focused largely on the terms of the construction contract which it said were relevant to the court’s analysis.  Of particular importance to the court were the following:

 The contract required Keller to adhere to the engineering specifications produced by O’Malley and provided that Keller’s “obligation to perform and complete the Work in accordance with the Contract Documents [was] absolute.” The contract further provided that any changes to the contract would be made by the County and O’Malley, not Keller. It also specified that representatives of both the County and O’Malley would periodically visit the work site to assess Keller’s progress and its adherence to the design, and there is evidence that the County’s representative visited the site nearly every day. It is undisputed that when O’Malley had a representative on the job site, it was acting on behalf of the County as its agent. Finally, the contract provided that upon completion of the project, a representative of O’Malley would inspect the site and certify that Keller had completed the work according to specifications.

 Although the court stated that the presence of an unreasonably dangerous condition weighs in favor of recognizing a duty on the part of the contractor, “The consequences of placing a duty on Keller to rectify the condition in these circumstances, however, lead us to conclude that Keller owed no such duty. Keller’s contract with the County required absolute compliance with the contract specifications, and there is summary judgment evidence that any deviation from the specifications could have jeopardized federal funding for the project. Further, it is undisputed that O’Malley certified Keller’s compliance with the contract specifications and the County accepted and paid Keller for the work.”

The Associated General Contractors of Texas, Inc. filed an amicus curiae brief arguing that “imposing liability upon contractors in Keller’s position for what is ultimately a faulty design would substantially increase the costs of construction.”  The AGC further argued that “contractors currently rely on the expertise of engineers who design and prepare construction plans and specifications to ensure that the completed work will be safe… and the imposition of a duty when a contract requires absolute compliance with plans and specifications would require contractors to hire their own professionals to ensure that a completed project will not be unduly dangerous.”  The court stated: “The AGC’s concerns further illustrate the difficulties inherent in imposing the type of duty on a contractor that has been advanced by the [plaintiffs]. Given the consequences of recognizing a duty under the circumstances this case presents, we hold that Keller had no duty to rectify the gap contemplated by the designs and specifications.”

For the reasons explained herein, the court held that the contractor owed no duty to rectify the site conditions or to warn of them. Allen Keller Co. v. Foreman, 343 S.W.3d 420, 54 Tex. Sup. Ct. J. 850 (2011)

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 14, No.3 (Mar 2012).

Copyright 2012, ConstructionRisk.com, LLC