Is the “Accepted Work Doctrine” Alive in Texas?

What is the “Accepted Work Doctrine”?

The “accepted work doctrine,” at least in jurisdictions which have adopted it, generally insulates a contractor from liabilities for injuries resulting from the negligent construction of a condition that has been accepted by a premises owner.  In simpler terms, under the doctrine once the owner of a construction project accepts the contractor’s work, the contractor is generally absolved of liability to third parties injured by a condition of the construction.

Nearly fifty years ago the Texas Supreme Court rejected the accepted work doctrine in Strakos v. Gehring, 360 S.W.2d 787 (Tex. 1962), although the Court made the following caveat: “Our rejection of the ‘accepted work’ doctrine is not an imposition of absolute liability on contractors.  We simply reject the notion that although a contractor is found to have performed negligent work or left premises in an unsafe condition and such action or negligence is found to be a proximate cause of injury, he must nevertheless be held immune from liability solely because his work has been completed and accepted in an unsafe condition.”  Id. at 790.

Strakos Revisted

Last April the Texas Supreme Court revisited this caveat in Allen Keller Co. v. Foreman, 343 S.W.3d 420 (Tex. 2011).  In Allen Keller Co., Gillespie County hired a general contractor to perform road construction on several projects designed to address flooding issues throughout the County.  One of the projects involved the excavation of an embankment and the construction of a concrete pilot channel on a one-lane bridge crossing the Pedernales River.  The project was constructed as designed, which ultimately resulted in the widening of a gap between a guard-rail and an embankment.  Tragically, the plaintiff drowned when a car she was riding in went through this gap and into the Pedernales River.  The plaintiff’s family sued the contractor, and several other parties, most of whom settled prior to trial.

The trial court initially granted summary judgment for the contractor, concluding that it owed the plaintiff no duty.  The San Antonio Court of Appeals reversed on several grounds, citing specifically to the Court’s rejection of the accepted work doctrine in Strakos.

Although noting its prior rejection of the accepted work doctrine, the Texas Supreme Court nonetheless agreed with the trial court, and held that the general contractor owed the plaintiff no duty. The Court reasoned that, unlike in Strakos, the contractor in Allen Keller Co. was required by contract to construct the project in strict compliance with the design, and did so.  In other words, a contractor owes no duty to third parties to remove or rectify an allegedly dangerous condition if the contractor was contractually required to construct the allegedly dangerous condition.  (The Court also declined to hold that the contractor had a duty to warn the public or the County of the dangerous condition.)

-Will Allensworth

Disclosure: Allensworth & Porter, L.L.P. represented the designer of the project at the trial court.  This synopsis reflects the views and interpretation of the author.