# Untitled Texas Attorney General Opinion > Texas Attorney General Reports · July 2, 1963 URL: https://www.frixlaw.com/law-library/cases/4135381 ## Case - **Court:** Texas Attorney General Reports - **Decided:** July 2, 1963 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Waggoner Carr - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4135381 ## Opinion text THEATTOFZNEP GETNEEZAL QFTEXAS Honorable Joe M. Chapman Chairman, Judiciary Committee House of Representatives Austin, Texas Opinion No. C-79 Re: Constitutionality and con- struction of Senate Bill Dear Mr. Chapman: 255 of the 58th Legislature. Your request for an opinion on the above subject matter poses the following questions: "1. Is the bill with its proposed amendment constitutional? "2i If the bill is passed without the amendment will It relieve builders, architects, etc. from liability for negli- gence in design and construction of proper- ty after such property has been accepted by the owner? “3. With the adoption of the amend- ment, would the bill relieve the builders, architects, etc. of liability for negli- gence in design or construction?" Senate Bill 255, referred to in your request, reads as follows: "AN ACT limiting the liability of laborers, mechanics, materialmen, contractors, builders, architects and engineers who are not also owners of the lands, improvements, or machinery affected, for Injuries done to the person of another or for trespass for Injury to the estate or the property of another as a result of conditions existing on lands or of buildings, machinery -383- Hon. Joe M. Chapman, Page 2 (C-79) or other work or improvements constructed, installed orperformed thereon where such in- jury or trespass occurs after possession of the premises was delivered to the owner upon completion;~and providing a defense to any such action, for the laborer or mechanic that he performed his work according to the instruc- tions~of the contractor, builder, architect, engineer or owner, or for the materlalman, contractor or builder that.he furnished his materials and performed his work in accord- ance~wlth plans, specifications, and lnstruc- tlons of the architect, engineer or owner; and for the architect or engineer that he prepared his design, plans and specifications and issued his instructions in accordance with the Instructions of the owner; provid- ing that the provisions of the Act shall not apply to actions based on negligence; repeal- ing all laws In conflict herewith; providing a savings clause; and declaring an emergency. "BE IT ENACTED BY THE LECISLATCHE OF THE STATE OF TEXAS: "Section 1. No action against a laborer, mechanic, materialman, contractor, builder, architect or engineer who Is not also owner of the lands, improvements, or machinery af- fected for Injury done to the person of an- other, as the result of conditions existing on lands or of buildings, machinery or other work or Improvements constructed, installed or performed thereon, shall be brought or main- tained by the person injured or the person whose property or estate has been injured if such trespass or injury occurred after possession of the premises was delivered to the owner upon completion. It shall be a defense to any ac- tion brought by the owner, for the laborer or mechanic that he performed his work according to instructions of the contractor, builder, architect, engineer or owner; for the materlal- man, contractor or builder that he furnished his materials and performed his work In accordance with plans, specifications and in- structions of the architect, engineer or owner; and for the architect or engineer that he pre- pared his design, plans and specifications a,nd -3a4- - Hon. Joe M. Chapman, Page 3 (C-79) issued his Instructions in accordance with the instructions of the owner. "Seci 2. Nothing herein shall apply to actions brought against such person based on negligence, either active or by omission. "Sec. 3. ~~A11laws and parts of laws in conflict herewith are hereby repealed. 'Sec. 4. If any.Section, sentence, phrase or part of this Act shall be held unconstitutional, such unconstitutionality shall not affect the validity of the remain- ing portions thereof; It being the Intention of the Legislature to pass the constltution- al Sections, sentences, phrases and,partsof this Act even though one or more Sections, sentences, phrases or parts shall be held to be invalid. "Sec. 5. The fact, that the Supreme Court of Texas has recently overturned the long established 'accepted work' doctrine, thereby subjecting laborers, mechanics, materlalmen, contractors, builders, archl- tects and engineers to new risks and con- tingent llabllltles for accidents caused~ by conditions existing on property belonging to other persons, after they have relln- qulshed possession and control of the prem- ises, has caused confusion and uncertainty; create an emergency and an Imperative public necessity that the Constitutional Rule re- quiring bills to be read on three several days in each House be suspended, and said Rule is hereby suspended; and that this Act shall take effect and be in force from and after its passage, and it is so enacted." The amendment referred to in your request inserts the fol- lowing proviso between the first and second sentences of Section 1: provided, however, that this Act shali not apply to any manufactured -385- Hon. Joe M. Chapman, Page 4 (C-79) products, except those attached to lands or buildings contained thereon." and substitutes the following for Section 2: "Section 2. This Act is not to apply in situations where it has been proven by a perponderance of the evidence that the Injury was caused by either hidden dangers and/or inherently dangerous conditions, which were brought about by the negligent acts, or omissions of the contractor, build- er, architect, engineer, materialman, labor- er,their agents or employees." A reading of the emergency clause contained in Senate Bill 255 reveals that the purpose of the Act Is to set aside the principle of law announced in Strakos v. Gehring, Tex . 360 s.w.2d 787 (1962). In that case th Supreme CEiTrt i%id that a contractor can be held liable 1: tort for In; juries occurring after acceptance of his work if the cause of injury is the condition In which the contractor left the premises upon completion of his work, the Court stating at 360 S.W.2d 790: "We think however, in the interest of clarity in the statement of the law, we should not concern ourselves with excep- tions which, as In the cases of products liability, have largely emasculated the rule but should now disapprove the doc- trine set forth in Gorsline In 1926 that a contractor cannot be held liable in tort for injuries occurring after the acceptance of his work by his employer although the cause of injury was the condition in which the contractor left the premises upon the completion of the work. Under the particu- lar facts of this case it could have been reasonably anticipated that the leaving of a hole near the approach of a farm access gate could cause injury If the hole be left unfilled for a comparatively short period of time. It Is difficult to see why a failure to use ordinary care to protect those using the farm access road would be terminated by an agreement between the contracting parties. Why should a dis- tlnction be made between an injury occur- ring the day before the acceptance of the -306- Hon. Joe M. Chapman, page 5 (C-79) contractor's work by the county (conslder- ing liability to exist at that time) and an Injury occurrlng'the day after the work was contractually accepted? The only authority cited in Gorsllne for the holding now in ls- sue was a statement from 14 R.C.L. 86 to the effect that an employer generally Incurs responslbllity to the public for defective work after he accepts it from the contractor. The fact that one who assumes control over a dangerous condition left by a contractor may be liable for injuries resulting there- from does not necessarily mean that he who creates the danger should escape liability. &phasls by the Courq " . . . "Our rejection of the 'accepted work' doctrine is not an imposition of absolute liablllty on contractors. We simply reject thennotion 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 never- theless be held Immune from liability solely because his work has been completed and ac- cepted in an unsafe condition." On motion for rehearing, the Court further held, at 360 S.W.2d 802, 803: "By way of analogy, we may consider the case of a contractor who negligently affixed handrails to bathtubs in a home for aged persons. !Thlsdefect is unnotic- ed by an Inspector with the result that the building is accepted by the owner. 1% there any reasonable basis for saying that the liability of the negligent contractor to one injured by the use of the defective- ly fastened handrail is automatically cut off by the owner's acceptance of the prem- ises? Should negligent Inspection excuse negligent construction, or should accept- ance of a structure in a dangerous condl- tion because of a hidden defect cut off a contractor's liability? At least, under such a factual situation and others similar -387- Hon. Joe M. Chapman, page 6 (c-791 thereto an exception to the 'acceptance ofthe work' rule is called for. Such 'an exception relating to inherently dangerous defects Is recognized in niuneroussjuris-' dictions. 58 A.L.R.2d 882.Roweneed-not, however, reI:yupon exceptionsin this case as liability Is fixed by the general rule of tort llablllty. "Weesee no difference in applicable principle between the hypothetical case given and the one actually before.us. AS pointed.'outin footnote 4 of the original opinion, the ~jury~found from evidence,suf- ficient in law thatthe hoIe left by Qeh- ring was 'Inherently dangerous.' In deter- mining whether a condition is 'inherently dangerous' under circumstances like those before us in this case; the question 'of fore- seeability of resulting harm Is clearly in- volved." Thus it is seen that the proposed legislation Is de& signed to'establlsh In this State whatls known as the 'ac- cepted work"~doctrine, which has been'rejected in Strakos v. (tehrlng,supra,. While Section 1 provides that no action shall be brought or maintained by the person injured if such injury occurred after possessionof the premises was delivered to the owner upon completion, Section 2 states "Nothing herein shall apply to actions brought against such person based on negligence, either active or by omission." Thus, in the original version, It Is lmposslble~to give effectto Section l'and.Section 2 land, therefore, ~the original'blll, in our opinion;is invalld,for vagueness. Wilson v. Naturopathic Board, 298 s.w.2d 946 (Tex.Civ.App. 1957 , error re ., n.r.e., -den. 78 s.ct. 121, 1958). The amendment above noted to Senate Bill 255 removes this irreconcilable conflict. Thus,,the remaining question to be determined on the constitutionality of Senate Bill 255 is whether the Legislature may determine the doctrine to be applied In cases involving injury to persons or property. It is our opinion that such Is within the province of the Legislature. Senate B511 255 st,atesthe conditions which will constitute a defense to a tort action and states the doctrine to be applied In such cases. You are therefore advised that Senate Bill 255, containing Committee Amendment No. 1, is valid. -388- Hon. Joe M. Chapman, Page i' (C-79) In answer to Question No. 2, you are advised that if Senate Bill 255 is passed without the smendment;it will not relieve parties named In the Act from liability for negligence in design and construction of property, after. such property has been accepted by the owner, as the Act, as held above, will be Invalid. With the adoption of the amendment, Senate Bill 255 will not relieve the individuals named in 'the Act from lia- bility for negligence in design and construction of property after such property hasbeen accepted by the owner, but will require proof 'by a preponderance of the evidence that the injury was caused by either hidden dangers and/o~rinherently dangerous conditions which were brought about by the negli- gent acts or omissions of the contractor, builder, architegt, engineer, materlalman, laborer, their agents or employees. SUMMARY Senate Bill 255 of the 58th Legislature without Committee Amendment No. 1, is invalid for vagueness, since the pro- visions of Section 1 and Section 2 are in irreconcilable conflict. Senate Bill 255, with Committee Amend- ment No. 1, Is valid, since It is within the province of the Legislature to pre- scribe conditions which will constitute a defense in tort actions and provide elements ofproof necessary to establish liability. Yours very truly, WAGGONER CARR Attorney General JR';ms -389 Hon. Joe M. Chapman, page a (C-79) APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Qrady Chandler J. S. Brzicewell Edward Moffett APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone -390- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4135381. Public record. Not legal advice.