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A highway contractor controlling traffic on a road on which it is performing construction owes a duty of care to a motorist who was rear-ended when forced to stop behind a car that wasn’t able to turn left at an intersection where traffic was backed up and stopped due to where and the flagger was positioned north of the intersection causing traffic to back up all the way through and south of the intersection.  The court considered seven factors in determining that the harm and injuries were foreseeable, and the contractor had a duty to avoid causing the foreseeable harm.

Shipp v. Western Engineering Contracting, Inc., 55 Cal. App.5th 476 (2020).

The contractor argued in its defense that no regulation required a highway contractor to keep intersections clear of traffic during roadwork, and that it was not the custom and practice of the road construction industry to do so.

In finding that the contractor owed a duty to the plaintiff the court cited other case law in the state which held:

“Defendants, a highway contractor and its employees, were performing work on a public highway or street under a contract….  They had the authority to control traffic, and motorists were legally obligated to obey their directions. Defendants obviously may be liable for their negligence in performing such functions. Indeed, as a highway contractor, defendants owed to the traveling public the duty of protecting it from injury that may result from their negligence, and a duty to protect the public against dangerous conditions existing where the public in rightful use of the roadway might encounter such conditions.”

In the current case, the contractor argued that case precedent didn’t apply to it because those cases “involved contractors that created a dangerous condition in or immediately adjacent to their work areas.”  In rejecting that argument, the court concluded that it was not relevant that the accident didn’t occur in the actual construction zone.  The fact that it took place in an off-site intersection where traffic was foreseeably backed up was sufficient because it was at least immediately adjacent to the roadway upon which the contractor worked.

The court analyzed seven factors that the state Supreme Court has established for consideration when determining whether an exception should be made to the general duty of care under the California civil code.  These are:

“(1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved. (Kesner, supra, 1 Cal.5th at p. 1143, 210 Cal.Rptr.3d 283, 384 P.3d 283, citing Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561 (Rowland).)”

Here the court found that each factor weighed in favor of finding a duty of care owing by the contractor. Shipp v. Western Engineering Contracting, Inc., 55 Cal. App.5th 476 (2020)

 

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk Report, Vol. 22, No. 9 (Dec 2020).

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