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Bush v. SECO Electric Co.

    Brief Fact Summary.

    Bush (plaintiff) sued SECO Electric Co. (defendant) for negligence.

    Synopsis of Rule of Law.

    A contractors, or any other party, may have a duty to some other tort plaintiff whom they had no privity with.

    Facts.

    Plaintiff worked at a recycling factory for aluminum cans and the defendant installed wiring for a device that conveyed cans into the hopper. The job of certain employees was to retrieve cans left behind, which was achieved by descending into a pit and retrieving the cans. To ensure safety the conveyer was supposed to be turned off before an employee descended into the pit. After the wiring was installed, the plaintiff was working in the pit and because plaintiff was unaware of the safety protocol, he did not turn off the conveyer before entering the pit, and the conveyer grabbed her clothes, which resulted in the plaintiff losing their arm. Plaintiff sued and argued the defendant negligently installed the wiring because they did not install an emergency shut off button within the pit. The defendant argued the acceptance rule barred liability. The rule states that a contractor only has a duty of care with the person they are in privity with, which here would be the recycling factory. Thus, once a contractor has performed their job, liability will be exclusively with the recycling plant. The trial court dismissed the case.

    Issue.

    Whether a contractor, or any other party, may have a duty to some other tort plaintiff whom they had no privity with?

    Held.

    Yes. A contractor, or any other party, may have a duty to some other tort plaintiff whom they had no privity with.

    Concurrence.

    None

    Discussion.

    Traditionally, a tortfeasor was only liable to persons which they had privity with and in some jurisdictions, it is still true that a contractor’s liability only extends to those whom they have privity with. Thus, under the acceptance rule a sub-contractor is only liable for torts committed against their general contractor. However, there is an exception to this rule when the work being done is inherently dangerous or dangerously defective. This is called the humanitarian exception. Here, the work being performed by the defendant suffices as an inherently dangerous activity. The standard is whether the work being done by a subcontractor has the propensity for injuring foreseeable third parties. The work here meets this definition because failure to provide a shutoff switch in the pit will foreseeable be able to cause severe injury or death to third parties.


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