specially concurring.
I concur that the trial court erred. It was at least a question for the jury whether at the time of death the state had assumed responsibility for placing warnings of the drop-off and, if not, whether the defendant was negligent in failing to reasonably warn of the drop-off.
I do not join in the majority, however, because I am of the opinion that the principle stated in Strandholm v. General Const. Co., 235 Or 145, 382 P2d 843 (1963), is inapplicable.
In Strandholm v. General Const. Co., supra (235 Or at 158), we held the defendant liable for negligently constructing a boom which it rebuilt for the plaintiff’s employer, Dreyfus. About six months after Dreyfus had accepted the work the boom injured plaintiff. We rejected the rule that acceptance of the work ended the defendant’s liability for negligent construction. We quoted from Harper and James that the rule of nonliability was an " 'offspring of the privity rule and the last-wrongdoer rule.’ ” 235 Or at 158. For this reason we also réjectéd the argument thát Dreyfus’s negligence was an intervening cause which terminated the defendant’s liability.
American Insurers v. Bessonette, 235 Or 507, 384 P2d 223, 385 P2d 759 (1963), extended the principle of Strandholm to building contractors. "íhe defendant builder " 'cáused a concrete wall to be constructed so as ito cause a main sprinkler pipé to break after the building had been completed and accepted.’ ” 235 Or at 508.
*487In neither case was there merely a "practical acceptance.” Dreyfus, in Strandholm, and the owner of the premises in Bessonette, fully and finally accepted the work. The principle of Strandholm and Bessonette is that a negligent contractor or builder will be responsible for an injury occuring long after the work is completed and accepted if the builder’s negligence caused the injury. We applied the Strandholm principle in Tucker v. Unit Crane & Shovel Corp., 256 Or 318, 473 P2d 862 (1970), and held a manufacturer liable for an injury occurring nine years after the crane was manufactured and accepted.
I joined the majority opinions in Strandholm and Bessonette and believe they are clearly correct. I do not believe, however, that they are applicable to the present facts.
The rule we adopted in Strandholm was not based upon contract. We held the duty of the builder to build a reasonably safe product was not terminated by acceptance of the product by Dreyfus. While we did not expressly so state, I believe it logically follows that Dreyfus could not limit defendant’s liability by contracting that upon Dreyfus’s acceptance of the work the defendant would no longer be liable to subsequently injured third parties. Such a contract might create a right in defendant to be indemnified by Dreyfus; however, it could not bar defendant’s liability to third parties.
I view the relationship of the defendant road contractor, the Highway Commission and users of the highway to be different than the relationships in Strandholm and Bessonette. The period when the defendant contractor was to be responsible for warning motorists was fixed by the contract with the Commission. I can think of no reason why such a contractual provision should not be honored and should not under usual circumstances govern the contractor’s liability to third persons. For example, if the contract between the Highway Commission and the contractor *488provided that the state would at all times assume full responsibility for furnishing warnings of the drop-off, I am of the opinion that the contractor would not be liable to a motorist who was injured because of inadequate warnings.
A land possessor such as the State Highway Commission has a duty to maintain land in a reasonably safe condition. I know of no reason, however, why the landowner should not have the power to direct a contractor what it may and may not do on its land, and when.
I view the question raised by this case to be, when did the contractor’s duty to warn, including the erection and maintenance of reflectors, terminate? The plaintiff similarly viewed the question:
"In the case at bar, there are two entities who might potentially have been in control of the work area at the time of Plaintiff’s decedent’s accident — the State of Oregon and the Defendant. Those two entities had contracted to place the responsibility for the work area and for safety measures therein on the contractor until final acceptance by the Highway Commission. * *
The two decisions on which plaintiff principally relied also regard the problem in the same light.
In Soden v. Bennett, 173 Kan 142, 244 P2d 1204 (1952), the defendant contractor rebuilt a road with black top pavement and soft shoulders on the edges. The charge was that the decedent was killed because the contractor failed to adequately warn of the soft shoulders. The contract provided that the contractor was to provide warnings. It further provided: "The contractor’s responsibilities for the maintenance of barricades and lights on any individual item of work included in the contract shall cease only when released in writing by the engineer.” 173 Kan at 147.
The court held:
"Once it is determined appellant’s liability under the contract did not cease until the job in question was accepted by the board of county commissioners we have *489little difficulty, after reviewing the facts of the record to which we have heretofore referred, in determining that the trial court did not err in overruling appellant’s [contractor] demurrer to the evidence or his motion for a directed verdict. * * 173 Kan at 150.
Breslin v. Fredrickson, 152 Cal App2d 780, 313 P2d 597 (1957), was a similar case. The court held:
"* * * [W]e think it must and should be held that where the contractor in his contract accepts responsibility for the condition of a public road as made or left by the performance of his contract until a certain type of release has been effected such liability continues and persons injured by defective conditions of the road during such a period may recover against the contractor. * * *.” 152 Cal App2d at 788.
As initially stated, I concur in the majority’s decision to reverse because it was at least a question of fact whether the defendant’s responsibility as fixed by the contract ceased.
O’CONNELL, C.J., joins in this specially concurring opinion.