### GETNEEZAL THEATTOFZNEP

QFTEXAS

Honorable Joe M. Chapman Chairman, Judiciary Committee House of Representatives Austin, Texas OpinionNo. C-79

Re: Constitutionalityand construction 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 amendmentwill It relievebuilders, architects, etc. from liability for negligence in design and construction of property after suchproperty has been accepted by the owner?

“3. With the adoption of the amendment, would the bill relieve the builders, architects, etc. of liability for negligence 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 engineerswho are not also owners of the lands, improvements,or machinery affected, for Injuriesdone 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

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### 2 (C-79)

or other work or improvementsconstructed, installed orperformed thereonwhere such injury or trespass occurs after possession of the premiseswas delivered to the owner upon completion;~

and providing a defense to any such action, for the laborer or mechanic that he performedhis work according to the instructions~ of the contractor,builder, architect, engineer or owner, or for thematerlalman, contractor or builder that.he furnishedhis materials and performedhis work in accordance~wlthplans, specifications,and lnstructlons of the architect, engineer or owner; and for the architect or engineer that he prepared his design, plans and specifications and issuedhis instructions in accordance with the Instructions of the owner; providing that the provisions of the Act shall not apply to actions based on negligence; repealing all laws In conflictherewith; 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 engineerwho Is not also owner of the lands, improvements,or machinery affected for Injury done to the person of another, as the result of conditions existing on lands or of buildings,machinery or other work or Improvementsconstructed, installed or performed thereon, shallbe brought or maintained by the person injured or the person whose property or estate has been injured if such trespass or injury occurred after possession of the premiseswas delivered to the owner upon completion. It shallbe a defense to any action brought by the owner, for the laborer or mechanic that he performed his work according to instructionsof the contractor,builder, architect, engineer or owner; for the materlalman, contractor or builder that he furnished his materials and performedhis work In accordancewith plans, specificationsand instructionsof the architect, engineer or owner; and for the architect or engineer that he prepared his design,plans and specificationsa,nd

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Hon. Joe M. Chapman, Page 3 (C-79)

issuedhis Instructionsin accordancewith the instructionsof the owner. "Seci 2. Nothingherein shall apply to actions brought against such person based on negligence, either active or by omission.

"Sec.

### 3.~~A11

laws and parts of laws in conflictherewith 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 remaining portions thereof; It being the Intention of the Legislature to pass the constltutional Sections, sentences,phrases and,partsof this Act even though one or more Sections, sentences,phrases or parts shallbe held to be invalid.

"Sec.

### 5. The fact, that the Supreme Court of Texas has recently overturned the long established 'acceptedwork' doctrine, thereby subjecting laborers,mechanics, materlalmen, contractors,builders, archltects and engineers to new risks and contingent llabllltlesfor accidents caused~ by conditions existing on property belonging to other persons, after they have rellnqulshedpossession and control of the premises,has caused confusionand uncertainty; create an emergencyand an Imperativepublic necessity that the ConstitutionalRule requiring 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 following proviso between the first and second sentences of Section 1: provided,however, that this

Act shali not apply to any manufactured

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products, except those attached to lands or buildings contained thereon."
and substitutesthe following for Section 2:

"Section 2. This Act is not to apply in situationswhere it has been proven by a perponderance of the evidence that the Injurywas caused by eitherhidden dangers and/or inherentlydangerous conditions, which were brought about by the negligent acts, or omissions of the contractor,builder, architect, engineer,materialman, laborer,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 Strakosv. Gehring, Tex

. 360 s.w.2d 787 (1962). In that case th S upreme CEiTrt i%id that a contractor can be held liable 1: tort for In; juries occurringafter 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 thinkhowever, in the interest of clarity in the statement of the law,we should not concern ourselveswith exceptionswhich, as In the cases of products liability,have largely emasculated the rule but shouldnow disapprove the doctrine set forth in Gorsline In 1926 that a contractor cannotbe held liable in tort for injuries occurring after the acceptance of his work by his employer although the cause of injurywas the condition in which the contractor left the premisesupon the completion of thework. Under the particular facts of this case it could have been reasonablyanticipated 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 terminatedby an agreement between the contractingparties. Why should a distlnctionbe made between an injury occurring the day before the acceptance of the -306-Hon. Joe M. Chapman,page 5 (C-79)

contractor'swork by the county (consldering liability to exist at that time) and an Injury occurrlng'theday after the work was contractuallyaccepted? The only authority cited in Gorsllne for the holding now in lssuewas a statementfrom 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 therefrom does not necessarilymean that he who creates the danger should escape liability. &phasls by the Courq

"

. . . "Our rejection of the 'acceptedwork' doctrine is not an impositionof absolute liablllty on contractors. We simply reject then notion that although a contractor is found to have performed negligentwork 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 completedand accepted in an unsafe condition."

Onmotion for rehearing, the Court further held, at 360 S.W.2d 802, 803:

"Byway of analogy,we may consider the case of a contractorwho negligently affixed handrails to bathtubs in a home for aged persons. !Thls defect is unnoticed by an Inspectorwith the result that the building is accepted by the owner. 1% there any reasonablebasis for saying that the liability of the negligent contractor to one injured by the use of the defectively fastenedhandrail is automatically cut off by the owner's acceptance of the premises? Should negligent Inspection excuse negligent construction,or should acceptance of a structure in a dangerous condltion because of a hidden defect cut off a contractor's liability? At least,under such a factual situationand others similar

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thereto an exception to the 'acceptance ofthe work' rule is called for. Such 'an exceptionrelating to inherentlydangerous defects Is recognized in niuneroussjuris-' dictions. 

## 58A.L.R.2d

## 882. Rowe need-not, however, reI:y

upon exceptionsin thiscase as liability Is fixed by the general rule of tort llablllty.

"Wee see no difference in applicable principle between the hypothetical case given and the one actuallybefore.us. AS pointed.'out

in footnote 4 of the original opinion, the~jury ~foundfrom evidence,sufficient in law thatthe hoIe left by Qehring was 'Inherentlydangerous.' In determining whether a condition is 'inherently dangerous'under circumstances like those before us in this case; the question 'offoreseeabilityof resultingharm Is clearly involved."
Thus it is seen that the proposed legislation Is de& signed to'establlsh In this Statewhatls known as the 'acceptedwork"~doctrine,which has been'rejected in Strakos
v. (tehrlng,

supra,. While Section 1 provides that no action shallbe brought or maintained by the person injured if such injury occurred after possessionof the premiseswas delivered to the owner upon completion, Section 2 states "Nothingherein shall apply to actions brought against such person based on negligence, either active or by omission." Thus, in the originalversion, It Is lmposslble~togive effectto Section l'and.Section 2 land,therefore,~theoriginal'blll,in our opinion;is invalld,forvagueness. Board, 298 s.w.2d 946 (Tex.Civ.App.Wilson v. Naturopathic
-den. 

## 78s.ct. 121, 1958). 1957, error re .,n.r.e.,

The amendment above noted to Senate Bill 255 removes this irreconcilableconflict. Thus,, the remaining question to be determinedon the constitutionalityof Senate Bill 255 iswhether the Legislaturemay determine the doctrine to be applied In cases involving injury to persons or property. It is our opinion that such Iswithin the province of the Legislature. SenateB511 255 st,ates the conditionswhich will constitute a defense to a tort action and states the doctrine to be applied In such cases. You are thereforeadvised that SenateBill 255, containing CommitteeAmendmentNo. 1, is valid.
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In answer to Question No. 2, you are advised that if Senate Bill 255 is passed without the smendment;it will not relieveparties named In the Act from liability for negligence in design and construction of property, after. such property has been acceptedby the owner, as the Act, as held above, will be Invalid.

With the adoption of the amendment, Senate Bill 255 will not relieve the individualsnamed in 'theAct from liability for negligence in design and construction of property after such propertyhasbeen accepted by the owner, but will requireproof 'bya preponderance of the evidence that the injurywas caused by either hidden dangers and/o~rinherently dangerous conditionswhich were brought about by the negligent acts or omissions of the contractor,builder, architegt, engineer,materlalman, laborer, their agents or employees.

SUMMARY
SenateBill 255 of the 58th Legislature without Committee AmendmentNo. 1, is invalid for vagueness, since the provisions of Section 1 and Section 2 are in irreconcilableconflict.

SenateBill 255, with CommitteeAmendment No. 1, Is valid, since It is within the province of the Legislature to prescribe conditionswhich will constitute a defense in tort actions and provide elements ofproof necessary to establish liability.

Yours very truly,

WAGGONER CARR Attorney General

JR';ms

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APPROVED:

OPINION COMMITTEE

W. V. Geppert, Chairman Qrady Chandler J. S. Brzicewell Edward Moffett

APPROVEDFOR THE ATTORNEY GENERAL By: Stanton Stone

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