AMI 1203 Contractor—Standard of Care

This instruction should follow AMI 302, 303, and 305.

This instruction (then AMI 1204) was approved in Center v. Johnson, 295 Ark. 522, 527, 750 S.W.2d 396, 399 (1988) (using instruction with AMI 302, 303, and 305).

Arkansas law subjects contractors to both the standard of care of the custom and industry and the standard of care of a reasonably prudent person. Dixon v. Ledbetter, 262 Ark. 758, 760, 561 S.W. 2d 294, 295 (1978) (“That a contractor uses customary methods is a matter to be considered, but that standard does not necessarily meet the test of ordinary care.”). “It has been held that where a contractor is held to both custom and industry standards and to the standard which would be followed by a reasonably prudent man then the more exacting standard will control.” Smith v. Aaron, 256 Ark. 414, 416, 508 S.W. 2d 320, 321 (1974) (citing Ferguson v. Ben M. Hogan Co., 307 F. Supp. 658, 663 (W.D. Ark. 1969) (industry cannot be permitted to establish its own uncontrolled standard by adopting careless methods to save time, effort, and money)). Both Dixon and Smith rely on Baker v. Pidgeon Thomas Co., 422 F.2d 744 (6th Cir. 1970), a diversity case applying Arkansas law, in which the court criticized the instructions given in the case because they did not make clear that the contractor was subject to both standards of a reasonable man and a reasonable contractor. The court found that the jury may have believed that the industry standard superseded and/or defined the reasonable man standard. Id. at 747–48.

A contractor performing a contract for the state or a political subdivision and under its supervision shares in the sovereign immunity, and if damages result from something inherent in the plans and specifications required by the public agency, the contractor is not liable unless he is negligent or commits a wrongful tort. Southeast Constr. Co. v. Ellis, 233 Ark. 72, 76–78, 342 S.W.2d 485, 488 (1961). This immunity enjoyed by the contractor is referred to as the acquired-immunity doctrine. Smith v. Rogers Grp., Inc., 348 Ark. 241, 249, 72 S.W. 3d 450, 454–55 (2002). This rule does not protect a contractor who performs work in a negligent manner resulting in damages to others. Guerin Contractors v. Reaves Food Ctr., 270 Ark. 710, 714, 606 S.W.2d 143, 145 (Ark. App. 1980) (negligence shown). See Souter v. Carruthers, 237 Ark. 590, 592–93, 374 S.W.2d 474, 475 (1964) (no negligence established); Ben M. Hogan Co. v. Fletcher, 236 Ark. 951, 953, 370 S.W.2d 801, 802 (1963) (no negligence established); Stanton—White Dredging Co. v. Braden, 137 Ark. 127, 133–34, 208 S.W. 598, 600 (1919) (negligence established). See also Lopez v. Mendez, 432 F.3d 829, 833–35 (8th Cir. 2005) (discussing acquired-immunity doctrine and finding negligent performance).

The acquired-immunity doctrine should not be confused with the accepted-work doctrine. Under the accepted-work doctrine, once a contractor's construction or repair of any public-owned improvement to public property is accepted, he cannot be held liable to third parties as a result of defects in the work. Ark. Code Ann. § 16-56-112 (reinstating and codifying the accepted-work doctrine after it was abolished in Suneson v. Holloway Constr., 337 Ark. 571, 992 S.W.2d 79 (1999)).