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Posted by H. Lee Pruett

A close majority in the Georgia Supreme Court recently ruled that the “acceptance doctrine” is still viable in this state. In Bragg v. Oxford Constr. Co., Case No. S08G1031 (Ga. S. Ct., Feb. 9, 2009), the Court split 4-3, with the dissent arguing that Georgia should follow the modern trend in numerous other states and reject the doctrine. Under the acceptance doctrine, a contractor is not liable for injury to a third person which results from the defective design of the work when the contractor does not hold itself out as a design expert, performs the work without negligence, and the work is accepted by the owner.

In Bragg, Dougherty County hired Oxford Construction Company to repave a county road. The county engineer directed Oxford to put a certain patch on the area of the road where the plaintiffs’ car accident later occurred. The trial court granted Oxford’s motion for summary judgment. The Court of Appeals affirmed and the Supreme Court affirmed. The Court held that Oxford followed the county’s specific instructions concerning the work, Oxford neither designed the work nor held itself out as a design expert, and there was no evidence that the work was performed negligently. Any liability, therefore, would fall on the county, which hired the contractor and which ordered and accepted the work.

The Court reiterated that the exceptions to the acceptance doctrine — inherently dangerous work, nuisance per se, and work so negligently defective that it is of imminent danger to third persons — apply only in cases where the contractor is negligent in performing the work. Thus, although it affirmed, the Court held that the Court of Appeals erred in analyzing the exceptions to the doctrine after concluding that the contractor was not negligent.

The three-justice dissent argued that the acceptance doctrine is antiquated and based on a case decided before negligence was recognized as an independent basis of liability, which case has been called “a fishbone in the throat of the law.” The dissent urged adoption of the modern “foreseeability doctrine” whereby a contractor whose work has been completed and accepted by the owner can still be liable to a third person where it was reasonably foreseeable that the contractor’s negligence or failure to disclose a dangerous condition would cause an injury to the third person.

The dissent does not address the finding of no negligence on the part of Oxford, nor the fact that Oxford saw a problem with its work, sought to have it corrected, but had permission denied by the county. Thus, as the majority correctly observed, the dissent failed to explain how the facts of the case justified the abandonment of a long-standing common law rule on which people have come to rely.