White v. Fayette Re-Bar, Inc.

Blackburn, Judge,

concurring specially.

I concur with the majority opinion, as this case is controlled by David Allen Co. v. Benton, 260 Ga. 557 (398 SE2d 191) (1990).

As noted by the majority opinion, where a contractor does not negligently perform its work and completes the work according to plans and specifications provided by the owner, the contractor generally is not liable for injuries to third parties resulting from the defective design of the work. PPG Indus. v. Genson, 135 Ga. App. 248 (217 SE2d 479) (1975). An exception to that general rule, however, is that a contractor who is an expert in the design of the type of work performed is not “entitled to put on blinders and ignore serious and dangerous defects in a design given to the contractor to execute.” Shetter v. Davis, 163 Ga. App. 230, 231 (293 SE2d 397) (1982).

It appears to this writer that this exception should not be limited to expert contractors, as opposed to non-expert contractors who are aware of the dangerous design or resulting condition. No compelling reason exists for distinguishing between expert contractors who are attributed knowledge of a defective or dangerous design by virtue of their status as expert, and a non-expert contractor who has actual *514knowledge of the danger and proceeds to construct it. Although it is not a factor in the instant case, as it was uncontroverted that Fayette Re-Bar, Inc. was not an expert in designing re-bar posts. This flaw in the subject rule should be addressed. The needed expansion can only be made by the Supreme Court and this court is bound by David Allen Co. v. Benton, supra, until changed by said court. McLin v. Harvey, 8 Ga. App. 360, 363 (69 SE 123) (1910).

Decided July 14, 1993. Moffett & Henderson, F. Glenn Moffett, Jr., L. Prentice Eager III, D. Kevin Wheeler, for appellant. Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Eric D. Miller, for appellee.