specially concurring.
I concur in the result obtained by the majority opinion. However, I believe attention must be called to the inconsistent result of this case as contrasted with the recent decision of McKinley v. Fanning, 100 Idaho 189, 595 P.2d 1084 (1979).
McKinley also involved injuries allegedly resulting from negligent construction. The trial court granted summary judgment for defendants and, upon appeal, this Court initially affirmed that summary judgment.
It is clear to me that the trial judge in the instant case based his decision on the initial opinion of this Court in McKinley. He stated:
“There seems to be little disagreement between the parties as to what the status of the law is in Idaho. The Supreme Court has on more than one occasion stated that if a contractor performs his work according to the plans and specifications, no liability may be imposed upon him for any damage resulting from such construction.
If any liability can be imposed against Boise Cascade Corp. in this case, its liability must arise out of its construction of the subject condominium in a negligent or improper manner or not in accordance with the plans and specifications.”
The trial court here then reviewed the •depositions and affidavits and said:
“Statements such as this seem to be entirely in the negative and do not show any genuine material facts from which it could be inferred that Boise Cascade did not follow the plans and specifications and that the work was not accepted by Sun Valley.”
The Court then stated:
“In the recent case of McKinley v. Fanning, filed on January 1,1978 as Supreme Court Opinion No. 12342, the Supreme Court again affirmed that proposition that a contractor who performs his work according to the plans and specifications cannot have liability imposed upon him for damages resulting from the construction.”
If the state of the law had been allowed to remain at rest at that point, I would see no confusion. However, this Court, upon petition therefor, granted a rehearing in McKinley, abandoned and reversed its position and the law which had been relied upon by the lower court in the instant case. In a split decision, the author of today’s opinion wrote a special concurrence in which he reviewed the so-called “modern rule” of foreseeability as
“A building or construction contractor is liable for injuries to or the death of third persons, occurring after the acceptance of the completed work by the contractee, where the work is reasonably certain to endanger third persons if negligently prepared or constructed.
It is now the generally accepted view that the liability of a contractor is the same as that imposed upon a manufacturer for injuries to ultimate consumers resulting from defective products.
As stated above, the rule of liability for foreseeable injury has thus replaced a rule of nonliability with many exceptions. The precise significance in a summary judgment case such as this one is that the question of foreseeability is one for the jury.” Id. at 192-93, 595 P.2d at 1087-88.
Thus, in my opinion, the majority opinion in the instant case and the final opinion in McKinley cannot be harmonized.
Further, the majority opinion inferentially faults the defendants Spicer and Sun Valley’s complaint against Boise Cascade Corporation that Boise Cascade is or may be liable for all or a part of Knudson’s claim against the defendants. Knudson complained against Spicer and Sun Valley alleging they were negligent in failing to *519adequately construct. Spicer and Sun Valley’s third party complaint alleged that Boise Cascade Corporation did the construction work. Hence, I deem it obvious, as did the trial court, “If any liability can be imposed against Boise Cascade Corporation in this case, its liability must arise out of its construction of the subject condominium in a negligent or improper manner or not in accordance with the plans and specifications.” Although perhaps not a model pleading, in my judgment, the third party complaint adequately alleges a cause of action against Boise Cascade as a joint tortfeasor.
McFADDEN, J., concurs.