dissenting:
The majority relies upon a longstanding legal doctrine to bar recovery from Billings Sweeping Service without justifying its application to this particular case or to modern theories of liability in general. While it is generally appropriate to follow the rulings of past decisions, I believe that this Court should examine the reasoning behind the rule of contractor nonliability before applying it to this case.
Historically, the “accepted work doctrine” has been justified on several groimds. These include: (1) a lack of contractual privity between a building or construction contractor and injured third parties; (2) that there would be no end to a contractor’s litigation unless liability ceased after the work was accepted; (3) the true proximate cause of a third party’s injury is the owner’s negligence in maintaining the property; and (4) public policy confines liability for negligent construction of a complicated structure to the owner or contractee. 58 Annot., A.L.R.2d 869, 870 (1958). These justifications are incorporated into Montana law in the case of Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856, which is cited by the majority as support for its holding that a contractor may not be held liable to an injured *86third party. I question whether these are adequate grounds for the majority’s holding in light of our general rules of negligence in Montana.
Other jurisdictions have held that the principles supporting the rule of contractor nonliability do not mesh with modern theories of negligence. The leading case in which the District of Columbia Circuit refuted these justifications for contractor nonliability is Hanna v. Fletcher (D.C.Cir. 1956), 231 F.2d 469. The court reasoned that the antiquated justifications based on lack of privity had no place in modern theories of liability as set forth in MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050. In MacPherson, the question was whether an automobile manufacturer could be held liable to a consumer for injuries resulting from a sudden collapse of the car due to defective wood used in one of its wheels. Judge Cardozo responded that:
“If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.”
111 N.E. at 1053.
In Hanna v. Fletcher, the court considered a claim for personal injury by a plaintiff who sued a construction contractor for negligent repair of a stair railing on an existing building. Several years after the repair work was completed and paid for, the railing collapsed during use and caused the plaintiff to fall into the stairwell, which resulted in serious injuries. The court concluded there was no reason to differentiate between the manufacturer of goods and a building contractor “for in each case negligent conduct often may be expected to result in injury to one reasonably foreseen as a possible user.” Hanna, 231 F.2d at 474. The court applied Judge Cardozo’s analysis and held the construction contractor liable for his negligent repair of the railing.
This Court has followed MacPherson and allowed recovery for negligence asserted against the manufacturers of automobiles [see Rix v. General Motors Corp. (Mont. 1986), [222 Mont. 318,] 723 P.2d 195, 43 St.Rep. 1296] and manufacturers of farm machinery [see Brown v. North American Manufacturing Co. (1978), 176 Mont. 98, 576 P.2d 711]. We concluded in those cases that it was no longer *87appropriate to bar recovery on theories such as those identified in connection with the accepted work doctrine, that is a lack of contractual privity, or that there would be excessive litigation, or similar theories. Given our rules of liability in cases where negligent construction by a manufacturer may cause injury, I see no reason why we should not extend that reasoning to apply to negligent construction by a contractor. Certainly the potential for injury due to negligent construction by a contractor is just as great as with the negligent manufacturing of a consumer good. I conclude that this Court should have reviewed the reasoning upon which the denial of liability is founded. While the facts presently before us may indicate a rather weak claim on the part of Mr. Harrington with regard to the proving of elements of negligence against Billings Sweeping Service, there is a proper legal theory which should allow him to continue with his cause of action.
I recognize there may be limitations which should be placed upon a theory of recovery against a building contractor. But an absolute bar to liability is not appropriate. The majority has failed to explain why a contractor should not be responsible for its own negligence. For this reason, I believe that this Court should have evaluated what I see as an outmoded concept to redefine our rules of liability in a case such as this. Thus, liability would more appropriately be predicated on the presence or absence of negligence on the part of the various parties involved, including the construction contractor.
MR. JUSTICE HUNT concurs in the foregoing dissent of MR. JUSTICE WEBER.