The Acceptance Doctrine in Georgia
In personal injury cases resulting from defective construction, the “Acceptance Doctrine” in Georgia may determine whether the injured party has a valid cause of action against the contractor. Contractors often attempt to avoid liability for their negligence by asserting the common law acceptance doctrine as an affirmative defense. The acceptance doctrine generally provides:
[W]here the work of an independent contractor is completed, turned over to, and accepted by the owner, the contractor is not liable for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection. Smith v. Dabbs-Williams General Contractors, LLC, 287 Ga. App. 646, 647 (2007).
Exceptions to the Acceptance Doctrine
There are several exceptions to this common law rule as it relates to negligent contractors. “‘One such exception is that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous. Another is that the contractor is liable where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons.’” Hollis & Spann, Inc. v. Hopkins, 301 Ga. App. 29, 32 (2009) quoting Shetter v. Davis Bros., Inc., 163 Ga. App. 230 (1982).
Notwithstanding these exceptions, litigants should understand that the acceptance doctrine only applies if the defect is not hidden but readily observable on reasonable inspection. Further, where an expert is needed to determine whether a defect exists, issues of fact usually remain as to whether the defect was readily observable on reasonable inspection. These rules are clearly stated in Jai Ganesh Lodging, Inc. v. David M. Smith, Inc., 328 Ga. App. 713, 724 (2014). Jai Ganesh Lodging is a case involving a grading contractor who failed to properly compact dirt and fill material prior to the construction of a Holiday Inn Express. Less than four months after the Holiday Inn opened, problems with settling began and litigation ensued. The Court of Appeals of Georgia held that there was evidence that “the grading contractor’s failure to properly compact the fill material was concealed from view and below the surface and thus not observable or detectable.” The Court went on to emphasize “that testing by a specialist was required to determine if the grading contractor had sufficiently compacted the site.” Therefore, the Court held that issues of fact remained for the jury’s determination concerning whether the defect was “readily observable on reasonable inspection.”
For a contractor who follows a plan without negligence, the contractor is shielded from liability unless the contractor was an expert in the design of the type of work being done. When the contractor is an expert in the design of the work being done, he or she cannot ignore defects in the design from which it was to work. David Allen Co. v. Benton, 260 Ga. 557 (1990).
Leading Georgia Cases
One of the leading Georgia cases where the Court of Appeals declined to apply the acceptance doctrine is Hollis & Spann, Inc. v. Hopkins, 301 Ga. App. 29, 33 (2009). The relevant facts of Hollis & Spann involve a plaintiff that fell on a curb ramp at a hotel in Savannah. The plaintiff sued the contractor, Hollis & Spann, alleging that the curb ramp was defective because its flared sides exceeded the maximum slope allowance and failed to have detectable warnings. The plaintiff’s allegations were supported by an architect’s testimony. Hollis & Spann had to rebuild the ramp after it was rejected by the city inspector. After it was rebuilt, the ramp was accepted by the city building inspector and the hotel owner. The plaintiff fell after the ramp was rebuilt and accepted by the hotel and city inspector.
Hollis & Spann moved for summary judgment arguing that the acceptance doctrine precluded a finding of its liability. The trial court denied summary judgment finding that there was evidence that Hollis & Spann negligently constructed the curb ramp and that there was evidence supporting application of an exception to the acceptance doctrine. The Court of Appeals affirmed.
In its opinion affirming the denial of summary judgment, the Court of Appeals held that the architect’s testimony was sufficient to create a question of fact as to whether the ramp was negligently constructed. The Court of Appeals also noted that Hollis & Spann never inspected or measured the completed ramp to ensure that its slope complied with code requirements. The fact that the hotel owner and City inspector approved the rebuilt ramp did not render the acceptance doctrine applicable because “‘[I]t is too plain to be debated that if an action is negligent, approval of that negligence by another party or even a government agency, or rather of the conditions creating the negligence, does not as a matter of law excuse the negligence.’” Hollis & Spann at 33 quoting Johnson v. Fowler Elec. Co., 157 Ga. App. 319, 323 (1981).
Examples of the Acceptance Doctrine Shielding Contractor from Liability
Cases applying the acceptance doctrine often turn on (1) whether there is evidence that the contractor was negligent, (2) the amount of control the property owner exerted over the contractor, and (3) whether the contractor was negligent in the performance of its duties. For example, in Smith v. Dabbs-Williams General Contractors, LLC, 287 Ga. App. 646 (2007), the contractor (Dabbs-Williams) was instructed to construct a temporary restroom facility that would be used for approximately one month and it did so. Smith at 647. Once the work was complete, Dabbs-Williams was instructed to leave the property. Id. Smith did not contend that a hidden defect existed at the time Dabbs-Williams turned the property over to the owner. Id. at 648. The defect that caused Smith to fall only existed due to the negligence of the owner after the temporary facility was turned over to the owner by Dabbs-Williams. Id. Given that Smith presented no evidence that there were any hidden defects at the time the owner accepted the work of Dabbs-Williams, summary judgment was appropriate.
In Bragg v. Oxford Const. Co., 285 Ga. 98, 99 (2009), the contractor did everything it was directed to do, followed specific instructions, and performed its work to the satisfaction of the County. The Bragg plaintiff presented absolutely no evidence that the contractor performed the assigned work in a negligent manner so summary judgment was appropriate.
How to Learn More About the Acceptance Doctrine in Georgia
You can view a video with a detailed analysis of the Acceptance Doctrine in Georgia on our YouTube channel.
If you have been injured on a property due to a defect that existed as a result of a negligent contractor, you need an attorney who is experienced in the nuances of Georgia construction law. Georgia attorney Joel Williams handles defective construction cases throughout the State of Georgia. You can reach Joel at his office in Kennesaw by calling 833-LEGALGA today for a free consultation.
