Strakos v. Gehring

In Strakos v. Gehring, 360 S.W.2d 787, 5 Tex. Sup. Ct. J. 462 (Tex. 1962), the plaintiff was a motorist who sued a fence contractor after stepping into a posthole located along an original fence. Id. at 788-89. The fence contractor was no longer working in the area at the time of the injury. The court rejected the "accepted work" doctrine and concluded that a contractor is not immune from liability for creating a dangerous condition on property solely because his work has been completed. Id. at 790. Notably, the Strakos court did not discuss or conclude that the trial court was required to submit definitions, instructions or special issues predicated on the duties of an owner, possessor or occupier of premises prerequisite to establishing liability against the contractor who allegedly created the dangerous condition. John Strakos severely injured his leg when he stepped into a hole alongside a road which was being incorporated into the State Farm-to-Market Road System. 360 S.W.2d at 788. Harris County had secured additional right of way along the sides of the road and agreed to relocate the fencing along both sides of the road. Id. The county contracted with John G. Gehring to remove the fences and place them along the new right-of-way lines. Id. Gehring did not fill any of the holes left by the removal of the posts from the original fence line. Id. at 788-89. The State of Texas contracted with Austin Road Company to resurface and widen the road. Id. at 789. Austin sub-contracted with N. M. Hubbard, Inc. to do the dirt work necessary to prepare the road for surfacing. Id. After Gehring had finished his work and Hubbard had commenced its work, Strakos approached a gate in the fence at a farm where he was going to work. Id. The fence was part of the fence that had been moved back by Gehring. Id. Strakos was injured when he stepped into one of the holes created by the removal of the old fence posts. Id. Gehring had not filled the hole or erected a sign or other warning device. Id. The court's discussion was focused on rejecting the "accepted work" doctrine, which stated that a contractor could not be held liable in tort for injuries occurring after the acceptance of his work by his employer although the cause of the injury was the condition in which the contractor left the premises upon the completion of the work. Id. at 790. In rejecting that doctrine, the court noted, "Under the particular facts of this case it could have been reasonably anticipated that the leaving of a hole near the approach of a farm access gate could cause injury if the hole be left unfilled for a comparatively short period of time. It is difficult to see why a failure to use ordinary care to protect those using the farm access road would be terminated by an agreement between the contracting parties." Id. The court reasoned, "The fact that one who assumes control over a dangerous condition left by a contractor may be liable for injuries resulting therefrom does not necessarily mean that he who creates the danger should escape liability." Id. The court cautioned that its rejection of the "accepted work" doctrine was not "an imposition of absolute liability on contractors." Instead, the court was simply rejecting "the notion that although a contractor is found to have performed negligent work or left premises in an unsafe condition and such action or negligence is found to be a proximate cause of injury, he must nevertheless be held immune from liability solely because his work has been completed and accepted in an unsafe condition." Id.