dissenting.
Because I disagree with the continued adherence to a judicially-created doctrine that is based on principles long since disapproved, I must respectfully dissent.
Georgia adopted the acceptance doctrine in the case of Young v. Smith & Kelly Co., 124 Ga. 475 (52 SE 765) (1905), citing treatises such as Wharton on Negligence, § 438, which in turn relied upon the then-leading case of Winterbottom v. Wright, 10 M & W 109, 152 Eng. Rep. 402 (1842). Winterbottom provided the foundation for “the general rule that the original seller of goods was not liable for damages caused by their defects to anyone except his immediate buyer, or one in privity with him,” (footnote omitted) W Page Keeton, Prosser and Keeton on The Law of Torts § 96, p. 681 (5th ed. 1984); this rule was extended to include building contractors as well as sellers of goods. Id. at § 104A, p. 722. However, Winterbottom was decided “before clear recognition of negligence as an independent basis of liability and of the distinction between tort and contract,” Oscar S. Gray, The Law of Torts, Vol. 3, § 18.5, pp. 705-706 (2d ed. 1986), and has since been characterized as “a fishbone in the throat of the law.” Keeton, supra at § 96, p. 681.
In the context of a manufacturer of goods, the privity requirement was disapproved in MacPherson v. Buick Motor Co., 111 NE 1050 (N.Y. 1916), an approach that has been universally accepted for over 40 years, Keeton, supra at § 96, pp. 682-683, and incorporated into Georgia law. See OCGA § 51-1-11 (b) (eliminating privity requirement for breach of implied warranty action against manufacturer). Using the analogy of MacPherson in cases involving building contractors, our sister states began to reject the acceptance doctrine, see Keeton, supra at § 104A, p. 723, leading to the development of a “modern rule” or “foreseeability doctrine,” pursuant to which
a building or construction contractor is liable for injury or damage to a third person even after completion of the work and its acceptance by the owner where it was reasonably foreseeable that a third person would be injured by such work on account of the contractor’s negligence or failure to disclose a dangerous condition known to such contractor.
*102Emmanuel S. Tipon, Annotation, “Modern Status of Rules Regarding Tort Liability of Building or Construction Contractor for Injury or Damage to Third Person Occurring After Completion and Acceptance of Work; ‘Foreseeability’ or ‘Modern’ Rule,” 75 ALR5th 413 § 3 (2000). See also Restatement (Second) of Torts § 385 (drawing parallel between contractor liability and manufacturer liability). This rule has been applied “not only to contractors doing original work, but also to those who make repairs, or install parts, as well as supervising architects and engineers.” (Footnotes omitted.) Keeton, supra at § 104A, p. 723. Of the states whose appellate courts have considered the issue, three-quarters have chosen to follow the modern rule.3 See also 75 ALR5th 413 § 2 [a] (acceptance doctrine “has been severely criticized and repudiated in most states”); Keeton, supra at § 104A, p. 723 (modern rule is “almost universal”); Gray, supra at Vol. 5, § 28.10, p. 410 (acceptance doctrine is “offspring of the privity rule and the last-wrongdoer rule,” which are “anachronistic and unwarranted exceptions to general negligence principles [that] are being progressively repudiated by the courts”).
The majority asserts that the facts of this case do not warrant a reconsideration of the merits of the acceptance doctrine. However, the doctrine provided the framework for analysis of those facts in both the trial courts and the Court of Appeals. This hardly makes the issue “abstract.”
“When the rationales which gave meaning and coherence to a judicially created rule are no longer vital, and the rule itself is not consonant with the needs of contemporary society, a court not only has the authority but also the duty to reexamine its precedents rather than to apply by rote an antiquated formula. . . . [Cit.]”
Robeson v. Intl. Indemnity Co., 248 Ga. 306, 311-312 (282 SE2d 896) (1981) (Smith, J., dissenting). Because the underpinnings of the acceptance doctrine have long been eroded, I would abandon it in favor of the modern rule, i.e., an assessment of contractor liability in accordance with general negligence principles.
I am authorized to state that Chief Justice Sears and Justice Benham join in this dissent.
*103Decided February 9, 2009 — Reconsideration denied March 9, 2009. Craig A. Webster, Brown & Scoccimaro, Ralph O. Scoccimaro, for appellants. Rutherford & Christie, Carrie L. Christie, Bondurant, Mixson & Elmore, Frank M. Lowrey IV, Nicole G. Iannarone, for appellee.It appears that the appellate courts of Delaware, Hawaii, Maine, North Dakota, South Dakota and Vermont have not addressed the acceptance doctrine. Of the remaining 44 states, 33 have adopted the modern rule. See 75 ALR5th 413 § 3 (listing 31 states) and recent cases Davis v. Baugh Indus. Contractors, 150 P3d 545 (Wash. 2007) and Peters v. Forster, 804 NE2d 736 (Ind. 2004). The District of Columbia also follows the modern rule. See Hanna v. Fletcher, 231 F2d 469 (D.C. Cir. 1956).